Keating Implement & Mach. Co. v. Favorite Carriage Co.

• Decision Date: 21 March 1896
• Citation: 35 S.W. 417
• Parties: KEATING IMPLEMENT & MACHINE CO. v. FAVORITE CARRIAGE CO. et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

35 S.W. 417

KEATING IMPLEMENT & MACHINE CO. v. FAVORITE CARRIAGE CO. et al.¹

Court of Civil Appeals of Texas.

March 21, 1896.

Appeal from district court, Tarrant county; S. P. Greene, Judge.

Action by the Favorite Carriage Company, a foreign corporation, against the Keating Implement & Machine Company and others for conversion. From a judgment in favor of plaintiff, defendant the Keating Implement & Machine Company appeals. Affirmed.

T. L. Nugent and John W. Wray, for appellant. Humphreys & McLean, for appellees.

STEPHENS, J.

The Favorite Carriage Company, a private corporation of Ohio, doing business at Cincinnati, recovered judgment against appellant and others in the sum of $3,246, for the conversion of a lot of wheeled vehicles which had been sold on a credit by said carriage company to Culberson, Wright & Co., a firm doing business in Ft. Worth, Tex., and afterwards returned to it in consequence of the insolvency of said firm. Having thus accepted the vehicles and canceled its debt, the carriage company placed them in the hands of Culberson, Wright & Co. for sale on commission. Thereupon appellant caused them to be seized and sold under attachment, as the property of said insolvent firm. The sole defense interposed to this action for conversion is founded upon the act of 1889 (page 87), requiring any foreign corporation "desiring to transact business in this state, or solicit business in this state, or establish a general or special office in this state," to file with the secretary of state a duly-certified copy of its articles of incorporation, and denying the right of any such corporation to maintain an action "in any of the courts of this state upon any demand, whether arising out of contract or tort, unless at the time such contract was made or tort committed" it had so filed its articles of incorporation.

Appellant urged the defense by plea in abatement, on demurrer, and in bar. The plea in abatement was stricken out on motion and exceptions, because it came too late. This action was proper, if, as the court held, such defense cannot be interposed in bar of the action. The contention of appellant's counsel seems quite plausible, that this defense, like that of outlawry or alien enemy, is available in either form. 1 Chit. Pl. 446, 447. But, if there was error in restricting it to a plea in abatement,—which we need not decide,—we are still of opinion that the pleadings would not have warranted a judgment in bar of the action. It was nowhere alleged that the Ohio corporation in question had ever transacted or solicited business or established an office in Texas, or that it had even desired to do so. It was not, then, alleged to be a foreign corporation of the class which the act of 1889 required to file articles of incorporation with the secretary of state. That act was not intended to apply, and does not in terms apply, to foreign corporations not undertaking to do business in this state, and could not be made to apply to such foreign corporations while engaged in interstate commerce. Bateman v. Milling Co., 1 Tex. Civ. App. 90, 20 S. W. 931. The right of a foreign corporation to own property here is an undisputed one, and yet it would be an empty right, indeed, if a trespasser might seize and convert such property to his own use with impunity. Mortgage Co. v. Worsham,...