Indianola Railroad v. Fryer , 1882 Tex. LEXIS 71 ( 1882 )

Watts, J. Com. App.

An error fundamental in character and going to the foundation of the action, though not assigned, is made manifest by the record. This suit was instituted against the Indianola Railroad Company, January 23, 1872. By amended petitions, one filed June 8, 1874, and the other January 20, 1875, it is alleged that on the 4th day of August, 1870, the legislature of the state of Texas passed an act entitled “An act to authorize the consolidation of the Indianola Railroad Company with the San Antonio & Mexican Gulf Railroad Company under the name and style of ‘The Gulf, Western Texas & Pacific Bailroad Company,’ ” in substance providing that the two companies might contract for their consolidation, and after that event the consolidated company should have all. the corporate rights, powers and privileges belonging to the two companies; that April 22, 1871, the said companies entered into an agreement to consolidate, which was recorded the same day; that agreement referred to the act of 1870, and stated the property put in by each company; that May 19, 1871, the Legislature of the state of Texas passed a further act entitled “An act to encourage the Gulf, Western Texas & Pacific Bail way Company in the construction of their railways.” Both the act of 1870 and 1871 are referred to and made part of the amended petition. It was also alleged that by said last act the state of Texas recognized the consolidation of said two companies, and ratified and confirmed the same, and provided that they should thereafter be one corporation. Ah examination of the act of 1870 shows that it was therein, among other things, provided, “That in case the Indianola Railroad Company shall contract with the San Antonio & Mexican Gulf Railroad Company for the construction of its road, and for the consolidation of the two companies, pursuant to the provisions of the present charters of said companies, then the consolidated company shall he thenceforward styled the £ Gulf, Western Texas & Pacific Railway Company,’ and in that name shaH have all the corporate powers, rights and privileges belonging to the two companies,” etc.

“That in case of the consolidation of the said railroad companies, the capital stock of the consolidated company may be increased, at the option of the corporation, to twelve millions of dollars, the aggregate of the capital stock allowed under the present charters of the two companies.” Special Laws 1870, pp. 101, 102.

In the preamble of the act of 1871, it is recited that the two companies had consolidated into one company under the name and style of the “Gulf, Western Texas & Pacific Railway Company,” and had organized the same to be managed according to the provisions of the charters of the two former companies. The first section of that act is as follows: “ That said agreement of consolidation is hereby ratified and confirmed, and that said joined and consolidated companies shall hereafter be one corporation, with powers, rights and privileges as provided in said original charters, under the name and style of the £ Gulf, Western Texas & Pacific Railway Company.’” Besides, authority is given to the “ Gulf, Western Texas & Pacific Railway Company ” to borrow money on bonds, etc. Special Laws 1871, pp. 425, 426.

The question presented is, wras there any such artificial person as the “Indianola Bailroad Company” at the institution of this suit, or at any time during the pendency of the same ? We are clearly of the opinion that from and after the passage of the act of 1871, that company ceased to exist, that its power to sue and capacity to be sued by that name had been extinguished, and that there was no such corporation as the “ Indianola Railroad Company.” All the powers and rights that it had ever enjoyed by virtue of the legislative charter had passed to and vested in another corporation, with a fixed and distinctive name, with all the capacities to sue and be sued that had theretofore been vested in the two old companies. This change had been wrought by the agreement of parties sanctioned by legislative enactment.

Here the question is not similar to that decided in the Georgia Railroad Cases by the supreme court, of the United States in 92d and 98th U. S. Reports. There the question was as to whether certain rights appertaining to the old companies had survived to the consolidated company. Here the simple question before us is, whether, after the consolidation was consummated by the act of 1871, there was any such corporation as the “ Indianola Railroad Company,” with power to sue and be sued, known to the law. The statement of the question furnishes the answer; thereafter, as to all matters pertaining to the affairs of the two old companies, the only person known to the law, with capacity to sue and be sued, was the “ Gulf, Western Texas & Pacific Railway Company.” Therefore, at the time of the institution of this suit, there was no such corporation as the “ Indianola Eailroad Company.” The whole proceeding, so far as it pertains to that branch of the case, must be considered as of no validity or effect.

We think the judgment which was rendered against the extinct corporation was a nullity and the attempted appeal also ineffectual, and that the cause should be dismissed.

Whatever claim Fryer had against the old Indianola Railroad Company, if it constituted a liability against the same, could have been enforced against the “Gulf, Western Texas & Pacific Railway Company.” It had succeeded to all the rights and assumed all the liabilities of the extinct corporation. The City of Indianola v. Indianola Railroad Co., decided at this term; T. & P. R. W. Co. v. Murphy, 46 Tex., 357; Stephenson v. T. & P. R. W. Co., 42 Tex., 166, 167.

[Opinion delivered March 23, 1882.]

That corporation was by amended petition filed June 8, 1874, made a party defendant, and in that, together with other amendments subsequently filed, appropriate allegations were made as to its liability. But on the 20th day of January, 1875, the general and special exceptions of the corporation were sustained to so much of Fryer’s pleadings as sought to make it liable for his claim, and judgment rendered accordingly.

In the record now before us, Fryer is shown to have filed his petition for writ of error against the said ‘ ‘ Gulf, Western Texas & Pacific Railway Company,” seeking to bring that judgment before the court for examination and revision, and had service made, and also filed an assignment of errors, and is now seeking to have that judgment revised. The court has no jurisdiction of the matter; there is neither a writ of error bond, bond for cost, or affidavit of inability to give such bond, found in the record. Without such bond or affidavit, the supreme court could acquire no jurisdiction of the matter.

We conclude on this branch of the case that it ought to be stricken from the docket at the cost of Fryer.

Dismissed.