Cabinet Makers Union v. Sommers

L. L. Levy, Esq., Attorney at Law, acting as judge ad hoc delivered the opinion of the court in the words and figures following, to wit; The Cabinet Makers Union have sued the defendant P. Sommers, on an open account of $448.25, and also on his note of $220.00. Interrogatories were prounded to Sommers which he was ordered and duly cited to answer in the legal delay. Defendant took no notice of the interrogatories beyond filing an unsworn exception to plaintiff’s petition, setting up therein [248] that plaintiff was not a legal person, nor a corporation authorized by law to stand in judgment. Interrogatories were taken for confessed after 10 days. Notwithstanding the exception was of record and undisposed of. Appellant Sommers contends that no day being appointed in the order for him to answer, that he had until the day of trial to answer. The law is adverse to this pretention, article 347 Code of Practice, permits to both plaintiff and defendat to annex either to their petition or their answers, interrogatories on facts and articles, which are questions in writing in the form of articles, which one of the parties to the suit prays, that the other be ordered to answer, under oath, in order to make use of his answers as testimony in support of his demand, or to aid him in his defense. See also article 348 of the Code of Practice. The party interrogated on facts and articles is bound to answer on oath, and categorically, each of the questions put to him, unless he cannot do so without confessing himself guilty of some crime. Except in the above case, if the party interrogated refuses or neglects to answer on oath to all the questions put to him, the facts concerning which he shall have so refused to answer, shall be taken for confessed. The exception was fixed for trial and dismissed. But right of defendant to urge it on the merits reserved. Defendant claiming benefit of exception, annexed, setting up on answer same facts presented on dilatory exceptions. But defendant failed to answer interrogatories. Defendant further prayed for a trial by jury. On the day of trial no answer to interrogatories was filed. The jury acted on the issues, and their verdict was favorable to the plaintiff. The judge a quo, permitted plantiff to use in evidence the judgment taking the interrogatories for confessed. There was no error in this ruling. It conveyed to the jury in a different form the instructions the plaintiff was entitled to have in absence of answers to interrogatories propounded. Whether judgment taking interrogatories for confessed was premature or not was immaterial, 13 L.R. 423. Defendant was bound to answer at some time before case went to the jury. Nor was the defendant, entitled, [249] until the day of trial to answer for failure to appoint a day in the order. It was not necéssary to have an order to answer. The right to the answers of the defendant springs from the law and exists independent of an order. It is only where the answers are called for in open court, that an order appointing a day is required.—11 A.R. 173; 14 L.R. 260; 10 L.R. 551; 5 R.R. 491. The only remaining issue in the case, is the existence of the corporation styed Cabinet Maker’s Union. If there be in law a private foreign Corporation in Indiana known by that name, it was not necessary to aver corporate capacity of the Cabinet Maker’s Union, to enable it to stand in judgment. It is elementáry, that the corporation must sue by the Corporate name. The name itself implies, that the Cabinet Maker’s Union is a corporate body. 16 Indiana R. 275; 4 Block 367. A company claiming to be incorporated, has only to show, that it has been regularly made a corporate body to enable it to sustain a suit beyond the jurisdiction in which it is constituted. Angelí on Corporations. C 372. The power to sue is one of the incidental powers and not necessary to be expressly given in the charter. Angell & T on Corporations C 369. Kent Com. 321. To prove the Cabinet Maker’s Union —a corporate body — plantiffs offer an exemplified copy of the revised statutes of Indiana, entitled, An act for the incorporation of manufacturing and mining companies and companies for mechanical, chemical, and building purposes, approved May 20, 1852. The first section of the act, provides that when three or more persons may desire to form a company to carry on any kind of business referred to in title of the act, that they shall make and sign and acknowledge before an officer capable of taking acknowledgments, a certificate in writing, which shall state the corporate name, adopted by the company, the object of its formation, the amount of capital stock, term of existence, number of directors, and their names; the name of town and county in which its operations are to be conducted; and file the same in the office of the secretary of state, and with the recorder of the town, and after comply [250] ing with such formalities, the persons and their successors shall become a body corporate. The articles of association of the Cabinet Maker’s Union exhibited on the trial to jury, show its organization in strict conformity with requirements of the act. The plaintiff we think under the law and evidence fully made out his case and we affirm the judgment with costs of both courts.