Elliott Electric Co. v. Clevenger

• Decision Date: 03 November 1927
• Docket Number: (No. 3471.)
• Citation: 300 S.W. 91
• Parties: ELLIOTT ELECTRIC CO. v. CLEVENGER.
• Court: Texas Court of Appeals

300 S.W. 91

ELLIOTT ELECTRIC CO. v. CLEVENGER.

(No. 3471.)

Court of Civil Appeals of Texas. Texarkana.

November 3, 1927.

Rehearing Denied November 10, 1927.

Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.

Suit by the Elliott Electric Company against W. J. Clevenger for a sum due and owing. From a judgment of dismissal, plaintiff appeals. Affirmed.

The suit was by appellant, a Louisiana corporation, to recover judgment in the sum of $608.52, claimed to be due and owing by appellee, of Nacogdoches, Texas, for the price of a set of stator coils and extras supplied at various dates, and the cost of labor performed at various dates, agreed to be paid by appellee, in the repair and overhauling of electrical machinery of his cotton gin. As pertinent to state, the appellee filed a general demurrer, and also specially pleaded in abatement that the appellant was a foreign corporation with no permit to do business in Texas. Appellant's petition did not allege such compliance with the statute. The court determined, as urged by the appellee, that it affirmatively appeared from the face of the petition that the appellant was a foreign corporation with no permit to do business in Texas, and that the action which it sought to maintain was one that it could not maintain in the courts of this state unless compliance with the statute had been made. The court determined the question entirely from the face of the petition, according to the allegations under the general demurrer urged, and not upon evidence on a hearing upon the plea in abatement. The court dismissed the suit, the appellant not offering to amend the petition. The appeal is to review the ruling of the court, timely excepted to by the appellant.

Seale & Dennman, of Nacogdoches, for appellant.

S. W. Blount, of Nacogdoches, for appellee.

LEVY, J. (after stating the facts as above).

The appellant presents the points in view that (1) objection of noncompliance of a foreign corporation with the statute requiring a permit to do business in the state is not ground for general demurrer, but a matter of defense to be pleaded by timely plea in abatement; and (2) the petition pleaded a contract constituting interstate commerce. In this state compliance with the statute of permit to do business, in view of its terms, must be both pleaded and proved to entitle the foreign corporation to maintain the action, where the alleged action appears on the face of the petition to be one which it could not maintain unless such compliance has been made. Taber v. Building & Loan Ass'n, 91 Tex. 92, 40 S. W. 954; Chapman v. Cash Register Co., 32 Tex. Civ. App. 76, 73 S. W. 969; Turner v. Cotton Oil Co., 50 Tex. Civ. App. 468, 109 S. W. 1113; Levinson v. Oil Co. (Tex. Civ. App.) 240 S. W. 1047; and other cases.

The procurement of such certificate being a condition precedent to the right to maintain an action, the petition becomes demurrable if it fails to allege that the certificate has been procured. But the directly contrary rule obtains where the facts alleged in the petition affirmatively show a transaction of the character of interstate commerce. Miller v. Goodman, 91 Tex. 41, 40 S. W. 718, 740; Crews & Williams v. Gin Co. (Tex. Civ. App.) 189 S. W. 793; Latham Bros. v. Louer (Tex. Civ. App.) 176 S. W. 920; Fennell v. Cement Co. (Tex. Civ. App.) 209 S. W. 796; Hull & Fiber Co. v. Grain Co. (Tex. Civ. App.) 244 S. W. 1062; and other cases. In such case objection of noncompliance with the statute becomes a matter purely of defense, raised by a timely plea, upon extrinsic evidence.

The allegations of...