Lake Superior Building Co. v. Thompson

G-baves, Ch. J: These cases were argued and submitted together, and depend upon the same points. They were actions of assump-sit commenced in justice’s court against the company, and the latter appeared there and pleaded the general issue, but failed to appear for trial, and judgment was given against it in each case. It thereupon removed -the proceedings by certiorari to the circuit court, where the judgments below were affirmed, and it now asks a revision by this court of each case, on writ of error. ■ The ground of error claimed in this court is, that no proof of the existence of the corporation was given before the justice. In failing to plead in abatement, and in pleading the general issue, the company in effect admitted that it was sued in the right name. — Comp. L., § 6549; Methodist Episcopal Church v. Tryon, 1 Denio, 451. And the evidence which was given to prove the claim, at the same time amounted to evidence that it was doing business in such name, and this brought the proceedings under the operation of the act of 1871, which provides “that in any srut or proceeding, civil or criminal, hereafter instituted in any of the courts of this state, wherein it shall become material or necessary to prove the incorporation of any company or corporation, or the existence of any joint stock company, or association, whether the same be a foreign or domestic corporation, company or association, evidence that such corporation, 'company or association is doing business under a [295] certain name, shall he prima facie proof of its due incorporation or existence pursuant to law, and of its name.” — L. 1871, p. 176. There 'was, then, prima facie proof in each of these cases, of the name, and lawful existence of the corporation, and as there was no countervailing evidence, this of course was sufficient. The other Justices concurred. MabstoN, J: These cases came on and were heard together, the facts being the same in each case. Two objections are urged by counsel for plaintiff in error: First, That there was no proof before the justice of the corporate existence of the defendant; and second, that there was a total want of evidence to establish a cause of action. Neither position is well taken. As to the first position, the affidavit on which the certiorari was allowed did not specify as error the want of proof of the corporate existence of the defendant, nor was there any thing in the affidavit which could in any manner be said to direct his attention to the proof upon that point, and the justice is only required to make a return to the matters specified in the affidavit. Upon the second point there was evidence given before the justice tending to support the plaintiff’s claim. The legal effect of the evidence given was, that the defendant was indebted to the plaintiff in a certain sum for a certain number of hours’ labor performed at a certain price per hour. The justice considered this sufficient, and we think he was correct. Besides, if we had any doubt upon this point, we should consider the affidavit defective, the same as in reference to the first point. The affidavit recites the evidence introduced before the justice, which upon this point as recited -was clearly sufficient to support the judgment, and it then adds “that the justice erred in rendering judg [296] ment in said canse, on the evidence introduced therein.” This we think did not specify the alleged error with sufficient clearness and particularity. It did not point out in what respect the evidence was insufficient, and the justice in answer thereto would not be required, and could not, to return the entire evidence taken in the cause. There being no error, the judgment below must be affirmed in each case, with costs. The other Justices concurred.