Permission of the court, under the circumstances here, for appellee-defendant, to interpose the defense of failure of appellant to file its charter and designate a resident agent worked grave injustice and in my opinion was an abuse of discretion. Here were the circumstances: The suit had been pending three and one-half years. Appellee had filed a number of motions and pleas. Its full answer to the merits had been on file over two years; a special master had been appointed and had taken evidence for twenty days on the merits and issues then presented by the pleadings. This evidence covers some 700 pages of this record. Complainant had rested its case. The record discloses that appellant had arranged with an attorney to qualify it under the Mississippi law, but the attorney had failed to do so. However, in July, 1932, it had procured a privilege license to bid on construction work in this state. The contract in question is dated November 22, 1932. On September 16th, 1933, appellant did actually qualify. The completed work was accepted as satisfactory by the Highway Commission January 23rd, 1934. Appellant sued for a balance of $65,764.24 growing out of that contract. It was under these conditions this plea was allowed, without even requiring the appellee to pay the costs which had accrued to that time. This court has held that appellee is subject to the same liability for court costs as an individual litigant. State Highway Commission v. Wunderlich, 194 Miss. 119,11 So.2d 437. All questions of merit and all evidence *Page 410 thereon were disregarded. Whether this plea be one of abatement or bar, it is in the nature of a dilatory plea and should be interposed and heard before any defense is made on the merits. Filing of the plea here was not a matter of right; it was within the discretion of the court. Appellant is now liable for large costs and the merits of its claim are unconsidered.
It is said in the main opinion, in justification of this unusual procedure, that appellee had a right to assume that appellant had performed its duty and complied with the statutes, and that appellee was relieved of all diligence in interposing this defense. That is a far-reaching assumption. Under it a defendant would never be required to plead in due course and time any failure of a plaintiff to perform its duty and comply with the law. For instance, it was the duty of complainant in this case to fulfill its contract. Suppose the defense had been failure on its part to do that. Under the foregoing reasoning the defendant could have interposed a plea of payment and had that tried out and then interposed a plea of nonfulfillment of the contract by complainant, on the right of defendant to assume that complainant had complied with the duty imposed upon it by the contract and the law.
It might be assumed, with much reason and justification, that the Highway Commission, in letting these public contracts to nonresident corporations, would naturally have in mind whether the contractor is authorized under the laws of Mississippi to enter into and perform and enforce such contracts in this state. The information can be gotten by the simple act of telephoning the office of the Secretary of State. It is public information. It was not concealed from the defendant. It could have been ascertained one moment as well as another.
But be that as it may, the majority opinion recognizes the extreme harshness of these statutes. The commission accepted the contract and the state has gotten the benefit of the work. The motion for permission to file these pleas *Page 411 stated no reason or excuse whatever for the delay in making the request. The trial court might have relieved complainant of the harshness and hardship of these statutes in this case by what I think would have been the exercise of a sound judicial discretion in refusing permission to interpose these pleas under the existing circumstances.