It seems that the defendant company was not dissolved, but was consolidated and merged with another company. "We must hold, therefore, that the statute of Colorado (Gen. St. of 1883, § 270), providing “ that the dissolution * * * of corporations * * * shall not take away or impair any remedy given against such corporations * * * for any liabilities incurred previous to its dissolution,” does not apply to the case at bar. But section 349, of the said statutes of 1883, expressly provides that “the consolidated company shall be responsible for and shall assume and pay all the just liabilities of each of the companies so consolidated,” etc., while section 351 thereof declares that “ Such * * * consolidation * * * shall not affect suits pending in which such corporation or corporations shall be parties * * * nor shall suits brought against such corporation by its former name be abated.” Thus it would appear that the right of action, if any exists in favor of the respondent, has, by the statutory provision above cited, become a liability of The Colorado Fuel & Iron Company and no longer exists against the appellant herein.
It appears that the action was brought some considerable time after the defendant had been merged and consolidated, and it was, therefore, not a “ suit pending ” at the time of merger; and, while the cause of action may not have abated or been lost against the. new corporation, under section 349 above quoted, yet we conclude that it did not exist against this defendant when the plaintiff brought his suit.
Judgment and order appealed from reversed, with costs of appeal and complaint dismissed, with costs of action to appellant.
Conlan, J., concurs.
Judgment and order reversed, with costs, and complaint dismissed, with costs to appellant.