Corsicana Transit Co. v. Walton, 189 S.W. 307

189 S.W. 307 | Tex. App. | 1916

^* Application for writ of error pending in Supreme Court. The appellant Corsicana Gas Electric Company predicates error upon the refusal of the court to peremptorily instruct, as requested, a verdict in its favor, because the evidence fails to show it to be liable under the statute for the death of the child. The petition fairly charged, as we interpret it, the two things: (1) That the Gas Electric Company and the Transit Company were operating a street railway "as a copartnership," or jointly, and (2) that the Gas Electric Company "owned" the street railway property. We concluded that the Corsicana Transit Company through its motorman was guilty of negligence proximately causing the death of the child. We have further concluded as applicable to the two things pleaded by appellee that, in point of fact as disclosed by the evidence, the Gas Electric Company was a distinct existing corporation and did not own and was not operating the street railway or car by hire or as a partner with or jointly with the Corsicana Transit Company, a distinct and separate corporation. Giving legal effect to the facts so found, it is believed that the Corsicana Gas Electric Company may not be held liable for the death of the child. Article 4694, Vernon's Sayles' Stat.; Lange v. Burke, 69 Ark. 85,61 S.W. 165; White v. Land Water Co., 18 Tex. Civ. App. 634,45 S.W. 207; Lipscomb v. Ry. Express Co., 95 Tex. 5, 64 S.W. 923,55 L.R.A. 869, 93 Am. St. Rep. 804.

The Corsicana Transit Company by its assignment of error insists that the court committed fundamental and prejudicial error in failing to peremptorily charge the jury to bring in a verdict in its favor, upon the ground that such company had been legally dissolved and was no longer in existence at the time of the suit. The transit company appeared and made answer to the merits of the suit, and evidence was offered in defense against its liability charged in the petition. And it appears there was evidence showing that on April 7, 1913, at a meeting of the stockholders and directors of the transit company, there was voluntary dissolution of the corporation. The stockholders of the corporation properly signed the resolution dissolving the corporation, and filed the same with the secretary of state, who issued a certificate of dissolution. It is believed it may not be said that there was error, as contended by appellant, in the precise assignment of error, on the part of the trial court in refusing to direct a verdict in its favor on the merits of the case, for judgment would have to be rendered on the verdict. The necessary legal effect of the dissolution is merely to abate the action against the corporation. 5 Thompson on Corp. (Ed. 1895) § 6723; 10 Cyc. p. 1316. If appellant was dissolved as a corporation the remedy was to abate the action, the same as the suggestion of death of a defendant would abate an action. And taking the proof as a suggestion to the trial court that the corporation was nonexistent, such suggestion may be considered as raising the question of the right of such corporation to prosecute an appeal. Being nonexistent as a corporation by dissolution, the dissolution terminates its existence, so that it has no capacity to prosecute an appeal. State v. Loan Trust Co., 113 Iowa 439,85 N.W. 638. The corporation may only appeal from a judgment declaring a forfeiture of its charter. Railway Co. v. Jackson, 85 Tex. 605,22 S.W. 1030.

The judgment against the Corsicana Gas Electric Company is reversed and here rendered in its favor with costs, and the appeal by the Corsicana Transit Company is dismissed. The appellee and the sureties on the Corsicana Transit Company's bond will each pay one-half of the costs of appeal. The judgment as to the Southern Traction Company will remain undisturbed.