159 Mich. 58 | Mich. | 1909
(after stating the facts). The first and second counts, among other things, aver “that after-wards, to wit, on the 25th day of July, 1908, the said Jackson Consolidated Traction Company became and was merged, consolidated, and amalgamated with and into the defendant herein, the Michigan United Railways Company.” If this count states a cause of action, it is not necessary to consider the validity of the 'other two counts.
The act, under which counsel for defendant assumes that this consolidation was effected, does not apply to the consolidation of street and electric railways organized under the laws of Michigan and lying wholly within its territorial limits. Act No. 143, Pub. Acts 1901. That act, both by its title and its body, refers to the consolidation of companies in this State with companies organized in adjoining States. In Shadford v. Railway, 130 Mich. 300 (89 N. W. 960), the defendant interposed the defence that no such consolidation was authorized by the laws of this State. To this contention this court replied that the defendant was not in a position to raise the question. The same rule applies here.
The two counts alleged generally a consolidation between the Jackson Consolidated Traction Company and the defendant. It is a general allegation, sufficient under the holding in Jackson Consolidated Traction Co. v. Jackson Circuit Judge, supra. If the plaintiff, upon the trial, can show a consolidation under which the law imposes upon the defendant the obligation to pay the debts of the former companies, the plaintiff will be entitled to recovery.
The order overruling the demurrer is affirmed, and the case remanded for further proceedings.
