Withee v. Citizens' Savings Bank

1 White & W. 242

• Court: Court of Appeals of Texas
• Decided: October 23, 1876
• Docket: No. —, Op. Book No. 1, p. 155
• Status: Published

Opinion

Opinion by

Ector, P. J.

§ 489. Demurrer or exceptions deemed waived, when. It nowhere appears from the record that the demurrer was overruled, or what disposition was made of it. Where exceptions are filed, but not subsequently noticed in the proceedings, they will be deemed waived. [Carter v. Carter, 5 Tex. 99.]

§ 490. Corporation; averment of corporate capacity in suit by; judicial knowledge of incorporation. The petition contained averments alleging that the plaintiff was a corporation, and declared in its corporate name; naming the act of the legislature, and the date of its approval, by which it was incorporated; the powers conferred upon it by said act of incorporation. Held, sufficiently certain to leave no doubt as to the existence of the corporation, and character of the plaintiff. A domestic corporation, created by a public law of the state, is not required to allege or prove that it is a corporation; because the court must judicially know the name and legal being of such a corporation. [Bank v. Simonton, 2 Tex. 531; Holloway v. R. R. Co. 23 Tex. 468.]

October 23, 1876.

Affirmed.