Burkburnett Refining Co. v. Ilseng

• Decision Date: 02 March 1927
• Docket Number: (No. 766-4744.)
• Citation: 292 S.W. 179
• Parties: BURKBURNETT REFINING CO. et al. v. ILSENG et al.
• Court: Texas Supreme Court

292 S.W. 179

BURKBURNETT REFINING CO. et al. v. ILSENG et al.

(No. 766-4744.)

Commission of Appeals of Texas, Section B.

March 2, 1927.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Action by the Burkburnett Refining Company against A. G. Ilseng and A. T. Russell, individually, and as partners doing business as the Russell-Ilseng Drilling Company, in

which J. C. Hunt and others were substituted as parties plaintiff. From an order dismissing the suit, plaintiffs appealed to the Court of Civil Appeals, Second District. Question certified to the Supreme Court. Question answered.

McGown, McGown & Anderson, of Fort Worth, and Luther Hoffman, of Wichita Falls, for appellants.

Capps, Cantey, Hanger & McMahan, Alfred McKnight, and Warren Scarborough, all of Fort Worth, for appellees.

POWELL, P. J.

This case is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the Second District:

"On April 26, 1921, in the district court of Wichita county, the Burkburnett Refining Company, a corporation, sued A. G. Ilseng and A. T. Russell, individually and as partners, doing business under the name of Russell-Ilseng Drilling Company, for the collection of the balance of an open account amounting to $2,248.53.

"Citation was originally issued on October 13, 1920. Alias citation was issued on December 13, 1920. Pluries citation on April 25, 1921; and finally on May 3, 1921, service was perfected on A. G. Ilseng. A. T. Russell was never served. Ilseng, upon being brought into court, pleaded his privilege to be sued in Tarrant county, Tex., under a plea of privilege filed by him on April 17, 1924. On May 7, 1924, the cause was transferred to the district court of Tarrant county. On May 9, 1924, the cause was docketed in the district court of Tarrant county. On June 6, 1924, defendant Ilseng filed his answer, which was withdrawn under an order of court on May 16, 1925. On May 27, 1925, appellants J. C. Hunt and others, who constituted the last board of directors and the officers of the Burkburnett Refining Company, filed their application to be substituted as parties plaintiff. Their application set up the fact that the Burkburnett Refining Company, a corporation, had been dissolved, and that the movants were entitled to prosecute the action as plaintiffs in the capacity of trustees for the creditors and stockholders of the dissolved corporation. The court duly entered its order substituting the appellants as parties plaintiff.

"On April 3, 1925, the defendants filed their verified plea in abatement, in which plea it was stated that on June 13, 1921, the Burkburnett Refining Company was dissolved, and proper certificates of dissolution were filed in accordance with the law in the office of the secretary of state of the state of Texas, and on such date the secretary of state issued his certificate certifying to the filing of such certificates by the stockholders of such corporation, and certifying in all things to the full dissolution of such corporation; that said corporation was on said date duly and legally dissolved and ceased to exist, and has not existed since said date; that said cause was thereafter transferred to the Forty-Eighth district court of Tarrant county on a plea of privilege, and continued to be maintained on the docket of that court with the said Burkburnett Refining Company, a purported corporation, as party plaintiff; that no substitution of party plaintiff was attempted to be made herein until the 27th day of March, 1925, when, upon an ex parte hearing upon a motion filed, the said parties prosecuting this suit as plaintiffs were substituted as parties plaintiff in lieu of the said Burkburnett Refining Company; that said substitution was made some four years after the dissolution of such corporation as aforesaid, and that such substitution was in law too late; that by reason of the facts herein stated this cause should be dismissed and abated.

"The answer of defendant Ilseng was filed subject to the plea in abatement and without waiving the same. The order of the court withdrawing the original answer of the defendants recites that such answer was filed without knowledge on the part of the defendant's attorneys of the previous dissolution of the Burkburnett Refining Company, and such order withdrew the original answer of the defendant so filed, and the court ruled that the answer of the defendant filed on April 3, 1925, and styled `An Amended Answer,' should be considered as the original answer of the defendant, and should be considered as filed subject to, and without prejudice to, the plea in abatement filed by defendant on April 3, 1925.

"On a hearing on the plea in abatement the court sustained said plea, and dismissed the suit as attempted to be prosecuted by the former directors and officers of the Burkburnett Refining Company. Said order and judgment further recited that the defendants go hence without day and recover their costs. To this judgment the substituted plaintiffs excepted and have appealed to this court.

"In our consideration of the case, we deem it advisable to certify to your honors the following question: Did the trial court err in sustaining the plea in abatement and dismissing the cause?

"In our study of the question so certified we have carefully examined articles 1388, 1389, and 1390 of the 1925 Code, and the cases of Butcher v. J. I. Case Threshing Machine Co., 207 S. W. 980, by the Texarkana Court of Civil Appeals; Orange Lumber Co. v. Toole, 181 S. W. 823, by the Galveston Court of Civil Appeals, writ of error refused; Corsicana Transit Co. v. Walton, 189 S. W. 307, by the Texarkana Court of Civil Appeals, affirmed in [Tex. Com. App.] 222 S. W. 979; Farmers' Mill & Elevator Co. v. Hodges, 248 S. W. 72, by the Amarillo Court of Civil Appeals; Ferguson-McKinney Dry Goods Co. v. Garrett, 252 S. W. 738, by Section B of the Commission of Appeals, opinion by Justice Powell; Pease v. Rathbun-Jones Engineering Co., 243 U. S. 273 61 L. Ed. 715, Ann. Cas. 1918C, 1147, and a number of other cases. In the case of Butcher v. J. I. Case Threshing Machine Company, supra, the Texarkana Court of Civil Appeals discussed the claim of conflict of that case with the cases of Orange Lumber Co. v. Toole and Corsicana Transit Co. v. Walton, supra, in the following language:

"`We do not think so. Each of those cases, as appears from the report of the one first mentioned and from the record here of the other, is distinguishable from the Pease Case, as it is from this one, in that in each of them the suit against the corporation was commenced after the corporation had been dissolved.'"

This certificate involves the construction of article 1389 of the Revised Civil Statutes of 1925. And articles 1388, 1390, and 1391 are related statutes. Therefore we quote them all, as follows:

"Art. 1388. Upon the dissolution of a corporation, unless a receiver...