C. J. Toerring Co. v. R. E. Moore Co.

Superior Court of Delaware

C. J. Toerring Co. v. R. E. Moore Co.

75 A. 786, 24 Del. 269, 1 Boyce 269, 1910 Del. Super. LEXIS 9, 1910 Del. LEXIS 31

DecidedMarch 16, 1910

StatusPublished

This text of 75 A. 786 (C. J. Toerring Co. v. R. E. Moore Co.) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

C. J. Toerring Co. v. R. E. Moore Co., 75 A. 786, 24 Del. 269, 1 Boyce 269, 1910 Del. Super. LEXIS 9, 1910 Del. LEXIS 31 (Del. Ct. App. 1910).

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Opinion

Boyce, J.,

delivering the opinion of the Court:

This action was brought by C. J. Toerring Company vs. R. E. Moore Company to the present term of this Court. Counsel for the defendant moved that judgment be refused notwithstanding the plaintiff’s affidavit of demand. It does not appear from the title of the suit whether the plaintiff is a corporation. In the affidavit the deponent said, among other things, “that he is [270]*270treasurer of the corporation, the plaintiff above named;” but .nowhere on the record, or in the affidavit, is the State or country of the creation of any such corporation indicated. Counsel for the defendant contended that the plaintiff should have indicated, either in the title of the suit, or in the affidavit, the State or country under the laws of which the plaintiff was created. The place of the creation of a plaintiff corporation need not be indicated at the time the suit is instituted, but if not done then, it must be shown later in the plaintiff’s declaration. We think before judgment should be granted to a plaintiff corporation, at the first term of Court, upon an affidavit of demand, the fact that the plaintiff is a corporation and the place of its creation should appear either in the title of the suit or in the affidavit of demand made by the person authorized to make such affidavit; for the reason that the record of the suit by the entry of the judgment on the affidavit of demand would be ended, but such record would be incomplete in that it would fail to show the State or country under whose laws the corporation was created. Chapter 106, Sec. 6, Revised Code (1893) P. 791, provides as follows: “And in any action by or against any corporation it shall not be necessary for the plaintiff on the trial to prove the incorporation and existence of such corporation, but the same shall be taken to be admitted as alleged on the record unless the defendant,” etc. This statute seems to indicate that the place of the creation of the corporation should appear somewhere on the record of the case.

We therefore refuse judgment, notwithstanding the plaintiff’s affidavit of demand.

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Boyce, J.,

delivering the opinion of the Court:

This action was brought by C. J. Toerring Company vs. R. E. Moore Company to the present term of this Court. Counsel for the defendant moved that judgment be refused notwithstanding the plaintiff’s affidavit of demand. It does not appear from the title of the suit whether the plaintiff is a corporation. In the affidavit the deponent said, among other things, “that he is [270]*270treasurer of the corporation, the plaintiff above named;” but .nowhere on the record, or in the affidavit, is the State or country of the creation of any such corporation indicated. Counsel for the defendant contended that the plaintiff should have indicated, either in the title of the suit, or in the affidavit, the State or country under the laws of which the plaintiff was created. The place of the creation of a plaintiff corporation need not be indicated at the time the suit is instituted, but if not done then, it must be shown later in the plaintiff’s declaration. We think before judgment should be granted to a plaintiff corporation, at the first term of Court, upon an affidavit of demand, the fact that the plaintiff is a corporation and the place of its creation should appear either in the title of the suit or in the affidavit of demand made by the person authorized to make such affidavit; for the reason that the record of the suit by the entry of the judgment on the affidavit of demand would be ended, but such record would be incomplete in that it would fail to show the State or country under whose laws the corporation was created. Chapter 106, Sec. 6, Revised Code (1893) P. 791, provides as follows: “And in any action by or against any corporation it shall not be necessary for the plaintiff on the trial to prove the incorporation and existence of such corporation, but the same shall be taken to be admitted as alleged on the record unless the defendant,” etc. This statute seems to indicate that the place of the creation of the corporation should appear somewhere on the record of the case.

We therefore refuse judgment, notwithstanding the plaintiff’s affidavit of demand.

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Bluebook (online)

75 A. 786, 24 Del. 269, 1 Boyce 269, 1910 Del. Super. LEXIS 9, 1910 Del. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-j-toerring-co-v-r-e-moore-co-delsuperct-1910.