DocketNumber: No. 3202.
Citation Numbers: 107 S.W.2d 752
Judges: WALKER, Chief Justice.
Filed Date: 6/24/1937
Status: Precedential
Modified Date: 1/12/2023
This suit was filed in county court of Montgomery county by "Thomason Supply Company, the trade name for a mercantile business owned and operated by J. W. Thomason, in Willis, Montgomery County, Texas," against W. T. Miller, praying for judgment on a promissory note and to foreclose a chattel mortgage lien, fully described in the petition. The defendant answered by plea in abatement to the effect that the suit could not be prosecuted by J. W. Thomason in his trade-name "Thomason Supply Company," general demurrer, and general denial. The trial was to the court without a jury. After the court overruled the plea in abatement, to which ruling the defendant duly excepted, plaintiff offered in evidence the note and the chattel mortgage put in issue by his pleadings, and proof that he was operating his business under the "assumed name" of "Thomason Supply Company," and that in assuming that name, he had fully complied with the provisions of Article 5924, R.S. 1925: "No person shall conduct or transact business in this State under any assumed name or under any designation, name, style, corporate or otherwise other than the real name of each individual conducting or transacting such business, unless such person shall file in the office of the county clerk of the counties in which such person conducts, or transacts or intends to conduct or transact such business, a certificate setting forth the name under which such business is, or is to be, conducted or transacted, and the true full name or names of each person conducting or transacting the same, with the post-office address of each. Said certificate shall be executed and duly acknowledged by the persons so conducting or intending to conduct said business in the manner provided for acknowledgment of conveyance of real estate." Defendant offered no testimony. Judgment was in plaintiff's favor for $366.03 and for foreclosure of the chattel mortgage lien as prayed for. Defendant has duly prosecuted his appeal to this court, and submits his appeal on two propositions.
Proposition No. 1: "The pleading and evidence having shown that the plaintiff in the trial court sued in a `trade-name,' and being neither a natural or artificial person the court erred in overruling the Plea in Abatement of the Defendant."
Proposition No. 2: "The pleading and evidence having shown that the plaintiff in the trial court sued in a `trade-name,' and being neither a natural or artificial person, the court erred in rendering a judgment in such `trade-name.'"
These propositions are without merit; on the very point presented, speaking for the Amarillo Court of Civil Appeals in Clark v. First Nat. Bank,
The cases cited by appellant did not involve a construction of article 5924 on the point in issue. Frank v. Tatum,
Judgment of the lower court is affirmed.
Frank v. Tatum , 87 Tex. 204 ( 1894 )
Pure Oil v. Walsh-Woldert Motor , 36 S.W.2d 802 ( 1931 )
Jones v. S. G. Davis Motor Car Co. , 224 S.W. 701 ( 1920 )
Davis v. Raney Auto Co. , 249 S.W. 878 ( 1923 )
Clark v. First Nat. Bank of Wichita Falls , 5 S.W.2d 822 ( 1928 )