Butterfield's Overland Dispatch Co. v. Wedeles

• Decision Date: 31 January 1871
• Citation: Butterfield's Overland Dispatch Co. v. Wedeles, 1 N.M. 528, 1871 NMSC 6 (N.M. 1871)
• Parties: BUTTERFIELD'S OVERLAND DISPATCH CO.v.HUGO WEDELES AND VICENTE ROMERO.
• Court: New Mexico Supreme Court

1 N.M. 528

BUTTERFIELD'S OVERLAND DISPATCH CO.

v.HUGO WEDELES AND VICENTE ROMERO.

Supreme Court of the Territory of New Mexico.

Jan. 1871.

A demurrer is waived by pleading over, and a ruling on it cannot be reviewed in the court above.

*1 APPEAL from the district court.The case appears from the opinion.

Wheaton and Clever, for the defendants and appellants.Elkins and Wheelock, for the plaintiffs and appellees.The first error assigned is that the court overruled the defendants' demurrer to the plaintiffs' declaration.As the defendants afterwards filed a plea of general issue, their demurrer ought not to be considered by this court: Young v. Martin, 8 Wall. 354;9 Id. 762;Aurora City v. West, 7 Id. 92;4 Id. 598;Clearwater v. Meredith, 1 Id. 42;11 Pet. 80;5 How. 29.If, however, this court considers the demurrer upon its merits, it can not be sustained.The questions raised by it, were: 1.Can a foreign corporation sue in the courts of New Mexico?This question ought to be raised by a plea in abatement (see7 Id. 573), but the supreme court of the United States has decided positively that a corporation created by the laws of one state can sue in the courts of another, unless expressly prohibited by the laws or constitution of the United States: Bank of Augusta v. Earle, 13 Pet. 519;Tombigbee Railroad v. Kneeland, 4 How. 16.The second cause of demurrer argued below, was that the notes declared on were payable to “George E. Cook, treasurer,” and not to the plaintiff in this action.The averment in the petition is sufficient to identify “George E. Cook, treasurer,” with the plaintiff in this suit, and the question raised is distinctly decided in Baldwin v. Bank of Newbury, 1 Wall. 234.The second error assigned is that the “court below permitted the notes to go to the jury without proof of the corporate existence of plaintiff.”The existence of a corporation plaintiff can only be called in question by a plea in abatement, and a plea to the merits admits the ability of the plaintiff to sue.This has been so frequently decided by the United States supreme court that it is no longer an open question: Society for Propagation etc. v. Pawlet, 4 Pet. 480;Conard v. Atlantic Ins. Co., 1 Id. 386;Railroad Company v. Quigley, 21 How. 202;Yeaton v. Lynn, 5 Pet. 232;1 Chit. 449, note 2;Bouv. Law Dict., Abatement, sec. 10.[The remaining errors not being considered by the court, it is not necessary to report the argument made on them.-REP.]By Court, WATERS, J.:

*2 The petition in this case sets forth that the plaintiffs, Butterfield's overland dispatch company, is a body politic duly organized and incorporated under the laws of the state of New York; and that the defendants, both residents of the territory of New Mexico, executed, delivered, and promised to pay to the plaintiffs, under the name of George E. Cook, treasurer, meaning George E. Cook, treasurer of said company, their two certain promissory notes, in the words and figures following:

MORA, N. M., September 2, 1867.

$4,000.Twelve months after date I promise to pay to the order of George E. Cook, treasurer, four thousand dollars, value received.

HUGO WEDELES,

VICENTE ROMERO.

MORA, N. M., September 2, 1867.

$4,000.Eighteen months after date I promise to pay to the order of George E. Cook, treasurer, four thousand dollars, value received.

HUGO WEDELES,

VICENTE ROMERO.

All the other allegations in the petition are in the usual form.Plaintiff then asks judgment for the amount of said notes.

To the petition defendants filed a general demurrer, which was by the court below overruled.Defendants then filed their plea of general issue, the cause was tried by a jury, verdict given for plaintiffs, and judgment entered accordingly.Motions for new trial and in arrest of judgment were also filed and overruled.Whereupon defendants appealed to this court.

The defendants in their bill of errors assign eight causes why the judgment of the court below should be reversed; all but the first and second, however, were abandoned by them in the argument of the cause, and consequently will not be considered.

The first cause of error assigned is that the court below erred in overruling the demurrer to plaintiff's petition.The counsel for the plaintiff take the ground that as the court below overruled defendants' demurrer to the petition, and defendants afterwards filed their plea in general issue, this demurrer ought not to be considered by this court, and in support of their position cite a number of authorities.

If the position taken by counsel for plaintiff is correct, the points raised by the demurrer in the court below can not be considered and reviewed by this court.This being, as we believe, the first time that this question has been presented to this court for consideration, it becomes necessary that we give it a careful and considerate examination.

The counsel for the defendants have cited no authorities upon the subject, and we are left with what little time we have for the consideration of other matters before us, to solve this question of practice without their aid.Our code of civil procedure and practice is silent on this subject, and we are therefore left to an examination of the question as construed by the supreme court of the United States, the only court which has power to review the action of this court.

The practice in some of the western states appears to be that exceptions taken at the time to the overruling of a demurrer saves the points raised by the demurrer, and may be reviewed by the supreme court.This practice, ...