Sprague v. Cutler & Savidge Lumber Co.

• Decision Date: 17 April 1886
• Citation: 106 Ind. 242,6 N.E. 335
• Court: Indiana Supreme Court
• Parties: Sprague v. Cutler & Savidge Lumber Co.

106 Ind. 242

6 N.E. 335

Sprague

v.Cutler & Savidge Lumber Co.

Supreme Court of Indiana.

April 17, 1886.

Appeal from Marion superior court.

P. W. Bartholomew, for appellant.

Morris & Newberger, for appellee.

Howk, J.

In this case the complaint of the appellee, the plaintiff below, counted upon a promissory note for the sum of $223.12, dated at Indianapolis, Indiana, on June 9, 1884, whereby the appellant, Laura F. Sprague, 90 days after the date thereof, promised to pay to the order of the Cutler & Savidge Lumber Company the aforesaid sum of money, with interest at 8 per cent. per annum after maturity, until paid. In its complaint, the appellee, a corporation organized and existing under the laws of the state of Michigan, alleged that appellant, by her note, a copy of which was filed with such complaint, promised to pay appellee the above-mentioned sum of money; that certain specified payments had been made on such note; and that the balance of the note, with interest and attorney's fees, was long past due and remained unpaid. Wherefore, etc. Appellant's demurrer to appellee's complaint was overruled by the court, at special term, to which ruling she excepted; and, upon her failure to answer over, judgment was rendered against her, as upon default, for the amount due on the note, and costs of suit. On appeal, the general term affirmed the judgment of the court at special term, and this appeal is prosecuted here from the judgment of the general term.

By a proper assignment of error here, appellant has brought before this court the same error assigned by her in general term; namely, the overruling of her demurrer to appellee's complaint. Appellant demurred to the complaint for the following reasons: (1) Because appellee had not the legal capacity to sue; and (2) because the complaint did not state facts sufficient to constitute a cause of action.

It is insisted, on behalf of appellant, that appellee cannot maintain this suit because its complaint shows that it is a foreign corporation, and fails to show that it has complied with the provisions of sections 3022 and 3023, Rev. St. 1881, in relation to the duties of agents of such corporations doing business in this state, before entering upon the duties of their agency. This objection to the complaint, or to appellee's capacity or right to maintain the suit, is not well taken, and cannot be sustained.The same objection was urged to the complaint in Cassaday v. American Ins. Co., 72 Ind....