Crews Williams v. Gullett Gin Co.

189 S.W. 793 | Tex. App. | 1916

Appellee sued appellants and recovered a judgment upon four promissory notes and foreclosing a chattel mortgage on certain personal property, and the defendants have appealed.

The first assignment charges the court erred in rendering judgment against the defendants because it appears from plaintiff's petition that plaintiff is a foreign corporation doing business in this state, and it is not alleged or shown that the plaintiff has complied with the laws of the state of Texas, authorizing it to do business in this state, and authorizing it to prosecute a suit within the state. The answer to this assignment is that the plaintiff's petition does not allege that the plaintiff was transacting business in Texas, and therefore it was not necessary to allege that it had obtained a license to transact such business. Implement Co. v. Beer, 19 Tex. Civ. App. 311, 45 S.W. 972; Brin v. Shirt Co., 43 S.W. 295; Telephone Telegraph Co. v. Kellogg, etc.,62 Tex. Civ. App. 402, 132 S.W. 963; Erwin v. Powder Co., 156 S.W. 1097. Appellant has brought up no statement of facts, and therefore we have no knowledge as to what was shown by the testimony upon this or any other point involved in the appeal.

The plaintiff's petition shows on its face that the suit was brought against Crews Williams, a partnership composed of J. C. Crews and Joe E. Williams; and, while there was no specific prayer for a judgment against each defendant, the petition concluded with a prayer for judgment for the amount of the plaintiff's debt, interest, and attorney's fee, with foreclosure of its chattel mortgage, "and for such other and further relief to which it may show itself entitled," etc. Hence we overrule the second assignment, which charges that the petition did not authorize a judgment against the defendants individually. Cothran v. Marmaduke Brown, 60 Tex. 370; Robertson v. Tonn, 76 Tex. 538, 13 S.W. 585; Wiggins v. Blackshear, 86 Tex. 665, 26 S.W. 939; Webb v. Gregory,49 Tex. Civ. App. 282, 108 S.W. 478.

The third assignment of error complains of the action of the court in overruling appellants' motion for a new trial based upon the ground of newly discovered evidence. That motion was properly overruled. It did not show sufficient diligence, and was defective in other respects.

The fourth assignment relates to the question of interest, the contention being that the plaintiff was not entitled to a judgment bearing 8 per cent. interest, because it did not plead the rate of interest allowed by law in the state of Louisiana, where the notes were made payable. The petition alleged that the notes bore interest at the rate of 8 per cent. per annum; and, there being no statement of facts, we must presume that the allegation referred to was established by the proof. Upon the subject of interest, the rule of law is that, in the absence of any proof upon the subject, it will be presumed that the law of another state is the same upon that subject as the law of the state in which the case is tried. Contracts for interest, not exceeding 10 per cent. per annum are authorized by statute in this state; and, applying the rule above referred to, we hold, in the absence of proof to the contrary, that it will be presumed that the law of Louisiana is the same as that of Texas, and that it authorizes contracts for interest, not to exceed 10 per cent, per annum. Therefore appellants' fourth and last assignment is overruled.

No error has been shown, and the judgment is affirmed.

Affirmed.