Marsalis v. Texas Cactus Hedge Co.

2 Posey 292

• Court: Texas Commission of Appeals
• Decided: July 1, 1880
• Docket: No. 5311
• Status: Published

Opinion

Opinion.— There was no error in permitting the officer who took the depositions to indorse upon the envelope the names of the parties to the suit and also the name of the witness whose deposition it contained. This was a matter addressed, to the discretion of the court, and no abuse of its exercise is disclosed by the record. Chapman v. Allen, 15 Tex., 282; Conger v. Cotton, 37 Ark., 293.

It is claimed that the court erred in overruling appellant’s exceptions to appellee’s repleader. These exceptions were that it was not shown by the allegations where or in what manner or for what purpose appellee was incorporated, and that it was not alleged that the charter authorized appellee to buy, own and hold merchandise.

Where plaintiff alleges its own incorporation the statute . requires that the allegation shall be that it “was duly incorporated ” and “ the date and manner of incorporation shall be stated.” B. S., art. 1190. It was alleged “that plaintiff, Texas Cactus Hedge Company, is now, and was on September, 1882, a corporation duly incorporated under the general laws of the state of Texas, having its principal office in the city of Cleburne, Texas, by filing its charter in the secretary of state’s office, at Austin, Texas, on the 4th day of September, 1882.” These allegations show a substantial compliance with the statute.

It ivas not necessary for appellee to allege that the charter authorized it to buy, own, hold and sell merchandise. If appellee had exceeded its powers in this respect, then appellants should have averred and shown it. The statute expressly authorizes private corporations to buy, own and sell property for certain purposes. B. S., art. 575.

Appellant’s exceptions to appellee’s repleader were properly overruled.

Beversed and remanded,