Waxahachie Nursery Co. v. Sansom

138 S.W. 422, 1911 Tex. App. LEXIS 844

Opinion

KEY, C. J.

(after stating the facts as-above). We sustain appellant’s contention and reverse and remand the case. If the facts alleged in appellant’s motion are true, then, by force of article 2387 of the Revised Statutes, appellant was entitled to judgment against appellee for the amount of the judgment upon which the execution was issued, unless appellee pleaded and proved a sufficient .excuse for not having returned the execution. Hale v. Bickett, 34 Tex. Civ. App. 369, 78 S. W. 531.

[1] In support of the action of the trial court, counsel for appellee presents the contention that the petition or motion showed no cause of action against the defendant, because it was made by the Waxahachie Nursery Company, without stating that said company was a firm, partnership, or corporation. We overrule that contention. The motion shows on its face that the plaintiff who presents it is the plaintiff who recovered the judgment upon which the execution was issued. The question of the plaintiff’s right to sue was determined before the judgment ■in its favor was rendered, and before the execution which was placed in appellee’s hands was issued, and the latter never had any. right to raise that question.

[2] Furthermore, if he ever had such right, he waived it when he filed his general denial, and he could not, by filing an amended original answer, avoid the effect of that waiver.

[3] Counsel for appellee urge the further contention that a foreign corporation has no right to sue in the courts of this state without complying with the laws -of this state, and securing a permit to do business. And it is asserted that no presumption will be indulged in favor of the plaintiff’s petition when passing upon a general exception thereto, and we are asked to presume that the plaintiff in this ease was a foreign corporation. We do not hesitate to overrule that contention, because it is well settled that, as against a general demurrer, all reasonable inferences and conclusions will be indulged in favor of the pleading so challenged. That proposition of law is too well settled to require citation of authorities.

[4] It is also contended that appellant’s petition or motion was insufficient because it failed to show that appellee could have collected the money by executing the writ. The burden rested upon appellee, and not upon appellant, on that point. Hale v. Bickett, supra.

For the error pointed out, ,the judgment is reversed, and the cause remanded.

Reversed and remanded.