Jasper v. Mays Mfg. Co.

• Decision Date: 04 April 1940
• Docket Number: No. 3637.,3637.
• Parties: JASPER et al. v. MAYS MFG. CO. et al.
• Court: Texas Court of Appeals

Page 895

139 S.W.2d 895

JASPER et al. v. MAYS MFG. CO. et al.

No. 3637.

Court of Civil Appeals of Texas. Beaumont.

April 4, 1940.

Appeal from District Court, San Jacinto County; W. B. Browder, Judge.

Consolidated suits by the Mays Manufacturing Company, an Arkansas corporation, and others, against L. O. Jasper and others, involving title to land, wherein defendants filed cross-actions. Defendants' pleas in abatement were sustained and plaintiffs' suit dismissed, and, from judgments dismissing defendants' cross-actions, defendants appeal.

Reversed and remanded.

W. M. Harmon, of Waco, Jeff Cochran, of Cleveland, T. F. Green, Jr., of Conroe, Thos. A. Wheat, of Liberty, and Pitts & Liles, of Conroe, for appellants.

W. R. Horrell, of Cold Springs, and John O. Douglas, of Houston, for appellees.

COMBS, Justice.

This suit involves title to several tracts of land in San Jacinto County, Texas. The trial court sustained defendants' pleas in abatement on the ground that plaintiff, Mays Manufacturing Company, an Arkansas corporation, was engaged in business in Texas without a permit and hence could not maintain the suit. The trial court of its own motion also dismissed the cross-actions of the defendants and all parties have appealed from that order. Attorneys for the appellants, L. O. Jasper et al., have made an accurate and succinct statement of the case in their brief from which we quote as follows:

"There were three separate and distinct suits filed, the first of which is styled Ed Mays v. Mrs. Lizzie Boys et al., No. 4332, in the District Court of San Jacinto County, Texas. In this suit the Mays Manufacturing Company filed its petition of intervention. The second suit was stuled Mays Manufacturing Company v. L. O. Jasper et al., No. 4359, in the District Court of San Jacinto County, Texas. The third suit was styled Mays Manufacturing Company v. J. E. Eason et al., No. 4363, in the District Court of San Jacinto County, Texas.

"In the Jasper case and the Eason case, the plaintiff was the Mays Manufacturing Company, a corporation organized under the laws of the State of Arkansas. However, in the Boyd case, Ed Mays, as an individual, was the plaintiff, and the Mays Manufacturing Company intervened in the cause.

"Thereafter, the defendants in the Jasper and Eason cases each filed a plea in abatement to the plaintiff's cause of action, alleging that the plaintiff was a foreign corporation doing business in the State of Texas without a permit to do business. At the same time, the defendants in the Boyd case filed a similar plea in abatement to the intervention of the Mays Manufacturing Company.

"Each of the defendants in the three cases filed a cross-action over and against the plaintiffs in each case, and in the Boyd case the intervenor was made a cross-defendant to said cross-action. Ed Mays and the Mays Manufacturing Company both waived service on the cross-action and entered their appearance, or else filed their answer to the cross-action.

"Thereafter all three cases were consolidated upon agreement of the parties insofar as the bearing upon the pleas in abatement were concerned.

"Thereafter on September 19, 1939, the pleas in abatement were heard, and by the Court sustained. However, the plaintiffs and intervenors, Mays Manufacturing Company, and Ed Mays did not appeal from such order at the same time all three cases were dismissed in their entirety; the order of dismissal being done on the action of the Court, and not by any of the parties thereto. From this order of dismissal all of the original defendants, the cross-plaintiffs, have...