[4] The Pacific Coast Borax Company had power to shorten the term of its corporate existence by an amendment to its articles of incorporation, even if the practical result of such abbreviation amounted to almost an immediate dissolution. (Tognazzini v. Jordan, 165 Cal. 19, [Ann. Cas. 1914C, 655 130 Pac. 879].) [5] "It is settled beyond question that, except as otherwise provided by statute, the effect of the dissolution of a corporation is to terminate its existence as a legal entity, and render it incapable of suing, or being sued as a corporate body, or in its corporate name. It is dead, and can no more be proceeded against as an existing corporation than could a natural person after his death. There

is no one who can appear or act for it, and all actions pending against it are abated, and any judgment attempted to be given against it is void." (Crossman v. Vivienda Water Co., 150 Cal. 575, 580, [89 Pac. 335].) Where there is no statute providing for the continuance of the corporation itself after dissolution, for the purpose of settling its affairs, provision is generally made for the doing of this by others. We have such a provision in this state. Section 400 of the Civil Code provides: "Unless other persons are appointed by the court, the directors or managers of the affairs of a corporation at the time of its dissolution are trustees of the creditors and stockholders or members of the corporation dissolved, and have full power to settle the affairs of the corporation." Before the supreme court was called upon to construe the provision of the act of the legislature relating to the forfeiture of charters by corporations for failure to pay license taxes, to which we will shortly refer, section 400 was held to be applicable in all cases of dissolution, whether voluntary or involuntary. (Havemeyer v. Superior Court, 84 Cal. 327, 365, [18 Am. St. Rep. 192, 10 L. R. A. 627, 24 Pac. 121]; Crossman v. Vivienda Water Co., supra.) Construing that section in the last-mentioned case the court said: "There is no statute of this state that authorizes the commencement or continuance of an action against the corporation after its legal death. We have no statute similar to that of several states, providing that in the event of the dissolution of a corporation its existence shall be continued either indefinitely or for a specified time for the settlement of its affairs. Statutes similar to our section 400 of the Civil Code above quoted do not have the effect of continuing the existence of the corporation as

cestui que trust, or otherwise, so as to render it capable of defending actions in its corporate name. (Thompson on Corporations, sec. 6739; Clark & Marshall on Private Corporations, sec. 333; Sturgis v. Vanderbilt, 73 N. Y. 384.) If section 385 of the Code of Civil Procedure, providing that an action does not abate by the death or any disability of a party, if the cause of action survives, is applicable to the case of a corporation, it does not authorize the continuance of the action against the corporation itself, but allows the action to be continued only against the 'representative or successor in interest,' brought in on motion." (McCulloch v. Norwood, 58 N. Y. 562, 568; see, also, Judson v. Love, 35 Cal. 463.)

Respondent, nevertheless, contends that the lower court having acquired jurisdiction over the defendant and the subject matter of the action by reason of the service of summons, continued to entertain and hold such jurisdiction, regardless of the fact that subsequent to such jurisdiction attaching the corporation voluntarily ceased to exist, and that, while the directors might properly be substituted as parties defendant, such substitution was not essential to a continuance of the action. He cites three cases as supporting this proposition: Lowe et al. v. Superior Court of Los Angeles County, 165 Cal. 708, [134 Pac. 190, 192]; Brandon v. Umpqua Lumber & Timber Co., 166 Cal. 322, [136 Pac. 62]; Turney v. Morrissey, 22 Cal. App. 271, [134 Pac. 335]. An important distinction must be made in the consideration of these decisions. Each deals with facts arising under the provisions of the special act of the legislature relating to the payment of the license tax by corporations and cases of forfeiture under its provisions. By reference to the above statute, and acts amendatory thereof, we find that the provision of section 10a of the act of 1907 (Stats. 1907, pp. 746, 747), so strongly relied on by respondent, is restricted by the title of the act to "making provision for settling the affairs of corporations where said tax has not been paid," and by the language of the provision itself, to "cases of forfeiture under the provisions of this act."

As we read the cases relied on by respondent, they merely determine that, since the amendment of 1907 to the act in question, an action pending against a corporation which has forfeited its charter by reason of failure to pay its license

tax, shall not abate by reason of the forfeiture, but may be continued and prosecuted or defended in the corporate name, the control and management of the action, so far as the corporate interests are concerned, being in the directors or managers in office at the time of the forfeiture, they being the trustees of the corporation, its stockholders or members. (Brandon v. Umpqua Lumber Co., supra.) We find nothing in any of said decisions, read in connection with the statute under which the cases arose, which may properly be said to remove this case, and cases like it, from the operation of the well-established general principles so succinctly stated in the authorities from which we have quoted. [6] As was so well pointed out by the chief justice in the Crossman case, supra, section 400 of the Civil Code, already quoted, does not have the effect of continuing the existence of a corporation after dissolution so as to render it capable of defending actions in its corporate name. It was, therefore, necessary that if the action could continue at all that its successors or representatives, under section 400, be properly brought in on motion, as provided in section 385 of the Code of Civil Procedure.

[7] Assuming the correctness of the recital in the judgment in this case, that the Pacific Coast Borax Company was regularly served with process, the filing of the demurrers and answer in its name and purporting to be in its behalf, was a nullity. So far as the dead corporation itself was concerned there could be no admission or estoppel. It could no longer be served with process, could not appear, could not itself admit anything nor authorize anyone else to do so for it. It was legally dead. (Crossman v. Vivienda Water Co., supra.) The action of counsel, who may have had authority to represent the defendant company prior to the termination of the period of its legal existence, could not, so far as that party was concerned, vitalize any proceedings taken in the abated action after the corporation ceased to exist. Any subsequent service on them by the plaintiff of the notice of motion. to file the amended and supplemental complaint, the notice that such pleading had been filed, and of the time granted the substituted defendants within which to plead thereto, was not effectual, so far as any interest of the defunct corporation was concerned. (Deiter v. Kiser, 158 Cal. 259, 262, [110 Pac.

921]; Bell v. San Francisco Savings Union, 153 Cal. 64, 69, [94 Pac. 225]; Pedlar v. Stroud, 116 Cal. 462, [48 Pac. 371].) Unless, therefore, it can be shown that some other course was followed, the result of which was to properly bring the appellants into the action, after which, by due service or voluntary appearance, they were subjected to the jurisdiction of the court, the respondent will have failed to maintain his position here. [8] From the very nature of things the dissolution or death of the defendant, like the death of any other party to a pending action, could only be brought to the attention of the court on proper suggestion made by someone other than the defunct corporation itself. (Combes v. Keyes, 89 Wis. 297, [46 Am. St. Rep. 839, 27 L. R. A. 369, 62 N. W. 89].) If the plaintiff intended to secure any judgment in this case, enforceable against these appellants, he should have had them substituted under section 385 of the Code of Civil Procedure as parties in place of the corporation, after the latter had become functus officio. (Ex parte Tinkum, 54 Cal. 201, 203.)

The notice of motion given by the plaintiff for permission to file the amended and supplemental complaint was based upon the notice itself and upon all the records, pleadings, and files in said action. The verified proposed amended and supplemental complaint was attached to, and by apt reference made a part of, the notice and motion. There was on file in the action the purported answer of the Borax Company, which was duly verified by one purporting to have been the secretary of the corporation prior to and at the time it ceased to legally exist. It fully appeared in both of these verified pleadings that the defendant corporation was legally dead. It was alleged in the verified proposed amended and supplemental complaint that "immediately prior and at the time of said dissolution" appellants, naming them, "were the duly elected, qualified, and acting board of directors of said corporation, and that they, as such directors are now the legally constituted and authorized trustees, representatives, and successors in interest of said corporation, and trustees of the creditors, stockholders, and members of said corporation, with full power and authority to settle the affairs of said dissolved corporation, and to appear in and defend this action, and as such are true and proper defendants herein."

This notice of motion was not served on any of the appellants personally. It was addressed to the defendant Borax Company and to the attorneys who had purported to represent it in the earlier proceedings in the action. It was served on these attorneys and on no one else. [9] It seems to be the well-settled rule that the substitution of one party for another by order of court is not such an amendment of a pleading as is required to be made on notice or to be engrossed otherwise than to be entered in the minutes of the court. (Kittle v. Bellegarde, 86 Cal. 556, 562, [25 Pac. 55]; Taylor v. Western Pacific R. R. Co., 45 Cal. 323, 337.)

[10] No record appears in the transcript from which we may gather that a formal order was made and entered in the minutes of the court, either in substance or in haec verba, substituting the appellants as parties defendant in the place and stead of the Borax Company. We are of the opinion, however, that the notice of motion and the order of the court directing that the proposed amended and supplemental complaint be filed and made of record in the case, and further directing that the defendants named in said amended and supplemental complaint have and were given twenty days from date of a service of a copy of this order in which to plead thereto, constituted a substantial compliance with section 385 of the Code of Civil Procedure, and operated to bring about such substitution. (Taylor v. Western Pacific R. R. Co., supra; Campbell v. West, 93 Cal. 653, [29 Pac. 219]; Ford v. Bushard, 116 Cal. 273, 276, [48 Pac. 119].) Furthermore, there is a recital in the judgment regarding the substitution of the defendants which, liberally construed, would show, whether with formality or not, the suggestion of the dissolution of the original defendant and a continuance of the action, or a revival of it, against the appellants. (Gregory v. Haynes, 13 Cal. 592.)

[11] One substituted in a cause must be duly notified of the fact of his being made a party before he can be affected by notices or proceedings in the action. (Judson v. Love, 35 Cal. 463, 469.) "A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him." (Code Civ. Proc., sec. 1014.) None of these things was done in the instant case. The attorneys for the dissolved corporation defendant were never authorized to and