Texas Packing Co. v. St. Louis Southwestern Ry. Co.
| Decision Date | 23 February 1921 |
| Docket Number | (No. 192-3243.) |
| Citation | 227 S.W. 1095 |
| Parties | TEXAS PACKING CO. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al. |
| Court | Texas Supreme Court |
Suit by the Texas Packing Company against the St. Louis Southwestern Railway Company of Texas and others. Judgment of dismissal affirmed by the Court of Civil Appeals (204 S. W. 120), and plaintiff brings error. Judgments of Court of Civil Appeals and district court reversed, and cause remanded to the district court, with directions.
Sleeper, Boynton & Kendall, of Waco, for plaintiff in error.
Scott & Ross, of Waco, for defendants in error.
Plaintiff, a foreign corporation, sued the St. Louis Southwestern Railway Company of Texas, the Wabash Railway Company, and the Illinois Central Railway Company, defendants, to recover damages, predicating liability upon the negligence of defendants to ice a car in transit, containing fresh poultry, which they had contracted to transport.
Plaintiff dismissed as to the Illinois Central Railway. The remaining defendants each filed a plea in abatement, urging the legal incapacity of plaintiff to maintain and prosecute the action, on account of not having a permit to do business in Texas.
The defendants' pleas in abatement were filed November 10, 1915, in the Seventy-Fourth district court. There are six bimonthly terms in each year in that court. There is nothing of record to show that any orders were made with reference to these pleas until the case was tried at the October term, 1916, when they were sustained and the cause dismissed upon the ground that the evidence showed that plaintiff's right to do business had been forfeited by the Secretary of State on account of its failure to pay its franchise tax.
On original hearing the Court of Civil Appeals overruled plaintiff's assignment urging that the pleas in abatement had been waived, but sustained an assignment directed to the insufficiency of the plea as a basis for certain evidence objected to by plaintiff, but considered by the court, and reversed and remanded the cause. Upon motion for rehearing by defendants, it set aside the judgment reversing the cause, and affirmed the judgment of the district court. 204 S. W. 120.
The action of the trial court in overruling the objections of plaintiff to the introduction of evidence in support of the pleas in abatement was error. Permitting the cause to be continued to the succeeding terms without calling the attention of the court to the...
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