Finance Corporation of America v. Stone, 3891.

• Decision Date: 19 October 1932
• Docket Number: No. 3891.,3891.
• Citation: 54 S.W.2d 254
• Parties: FINANCE CORPORATION OF AMERICA v. STONE et al.
• Court: Texas Court of Appeals

Page 254

54 S.W.2d 254

FINANCE CORPORATION OF AMERICA v. STONE et al.

No. 3891.

Court of Civil Appeals of Texas. Amarillo.

October 19, 1932.

Rehearing Denied November 16, 1932.

Appeal from Potter County Court; E. C. Nelson, Judge.

Suit by the Finance Corporation of America against Lela O. Stone and others. From an adverse judgment, plaintiff appeals.

Affirmed.

R. E. Prothro and Fischer & Fischer, all of Amarillo, for appellant.

R. E. Stalcup, of Dalhart, and Underwood & Strickland, of Amarillo, for appellees.

JACKSON, J.

Lela O. Stone, a feme sole, purchased an automobile from J. H. Austin, who was doing business in Amarillo under the tradename of Auburn-Amarillo Company. In part payment for the car she executed an installment note dated January 4, 1930, in the principal sum of $366.96. The note provides for 15 per cent. attorneys' fees in case of default, and has the usual acceleration clause. At the same time she executed a chattel mortgage upon the automobile to secure the payment of the note, which provides that, in the event of a failure to pay any installment at maturity, the holder of the note was empowered to take possession of the property, with or without notice, and to sell the same at either public or private sale, and to apply the proceeds, less the expenses, as a credit upon the note; that a balance of $244.64 was unpaid when the maker defaulted in the installment due May 23, 1930.

For value before maturity, Austin, under his trade-name, transferred the note to the appellant Finance Corporation.

Said corporation instituted this suit, alleging in part as follows: "That plaintiff is a corporation duly organized and existing under and by virtue of the laws of the State of Pennsylvania; that the defendant Lela O. Stone is a single woman and resides in Potter County, Texas; that defendant J. H. Austin is a resident citizen of Hartley County, Texas, and at the time and times hereinafter mentioned, was engaged in the automobile business at Amarillo, Potter County, Texas, under the trade name of Auburn-Amarillo Co."

Lela O. Stone defaulted.

The defendant Austin filed a plea in abatement, the substance of which is that plaintiff was a foreign corporation, having no permit to do business in the state of Texas; that the cause of action arose out of transactions done and performed within the state of Texas; and prayed that the suit be abated. This plea was not verified.

In reply thereto the plaintiff filed a supplemental petition which consists of a general demurrer, general denial, an admission that it was a foreign corporation and had no permit to do business in Texas; but further alleged that it had never done any business in the state of Texas as such term is interpreted under the laws of the state requiring foreign corporations to obtain a permit to transact intrastate business. Plaintiff further set out the terms of its agreement with Austin which provides, in effect, that plaintiff should aid Austin in financing sales of automobiles by purchasing from him notes given therefor, agreeing that he would indorse and guarantee the payment of all such notes, and alleges that the note sued on was executed and taken under said contract. Plaintiff denied that it had ever maintained an office in Texas, that the contract with Austin was entered into in Pennsylvania, and the note sued on was payable there.

On a trial to the court without a jury, plaintiff's general demurrer to the plea in abatement was overruled, and, after a hearing upon the merits, the court sustained the plea in abatement and rendered judgment that plaintiff take nothing against the defendants.

Appellant's first proposition is that, unless the truth of the plea appears of record, an answer that plaintiff has not legal capacity to sue must be verified.

This is an abstract proposition of law which, as stated, is not correct. It assigns no error committed by the court, and, of course, cannot be considered.

It is contended under this proposition that the court erred in overruling the appellant's general demurrer to the plea in abatement, and that such ruling was error because the plea was not verified. Failure to verify a plea in abatement may render it subject to a special exception. If the plea alleges facts sufficient, if true, to abate the suit, it would be good as against a general demurrer because it is sufficient in substance. If the defendant fails to make oath to the plea, it is a matter of form required by the statute, and is a defect which can be challenged only by special exception. Unless it is specially excepted to for that reason, the defect is waived. A general demurrer will not reach it. Thompson v. Lutz (Tex. Civ. App.) 278 S. W. 333.

It is insisted by the second proposition that the trial court erred in sustaining Austin's plea in abatement and dismissing the suit, for the reason that the burden of proof was upon Austin to...