
    Brady v. The National Supply Company. Same v. The Union Supply & Hardware Company.
    
      Corporation need not aver it is a corporation — When commencing an action — Burden of proof — When corporation is defendant and its powers questioned — Must he specially pleaded — Rule as to foreign corporations.
    
    1. Where a corporation commences an action, it need not aver in its petition that it is a corporation; and if such averment is made, it will be held to be immaterial and mere surplusage, and a general denial to a petition containing such averment will not impose upon the plaintiff the burden of proving on the trial that it is such corporation.
    2. To raise the issue of nul tiel corporation, the defendant must Specially plead in his answer that the plaintiff is not a corporation. Smith v. Weed Sewing Machine Co., 26 Ohio St., 562, approved and followed.
    3. Where a corporation is made a defendant, and its charter, powers or franchises become the foundation of the action, the same must be specially pleaded in the petition; and in the case of a foreign corporation, the name of the state by which, and the substantial terms in which, the charter, powers or franchises were granted, should appear in the petition. Devoss v. Gray, 22 Ohio St., 159, approved and followed.
    (Decided March 12, 1901.)
    Error to the Circuit Court of Lucas county.
    These two cases were heard and considered together. In the National Supply Company case, the petition avers that the company is a corporation duly incorporated under the laws of the state of West Virginia, that it is doing business in the state of Ohio, and that it has complied with the laws of this state relating to foreign corporations doing business in Ohio, and then proceeds to state its cause of action arising on a judgment recovered by it against said Frank E. Brady in the state of Indiana. The answer is a general denial.
    In the Union Supply and Hardware Company case, the petition avers that it is a corporation duly organized and incorporated under the laws of the state of Ohio, and is doing business in this state, and then declares upon a judgment recovered by it against said Frank E. Brady in the state of Indiana. The answer is a general denial.
    No proof of the incorporation of either company was introduced upon the trial in the court of common pleas, other than the transcripts of the judgments so recovered in the state of Indiana. Plaintiff in error claims that in the absence of such proof the judgment should have been in his favor. The court of common pleas regarded such proof unnecessary and rendered judgment against him in both cases. The circuit court affirmed the judgments, and thereupon Mr. Brady filed his petition in error in this court, seeking to reverse the judgments of the courts below.
    
      G. F. Watts, for plaintiff in error,
    cited the following authorities: Lewis v. Bank, 12 Ohio, 132; Smith v. Sewing Machine Co., 26 Ohio St., 562; Bliss Code Pleading, Secs. 247, 248; Kinkead Code Pleading, Vol. 2, Sec. 990; Goodrich v. Jacobs, 6 Ohio, 43; Am. & Eng. Ency. of Law, 1st ed., Vol. 12, page 149; Whittaker v. Branson, 12 Paine, C. C., 209; 2 Freeman on Judgments, 4th ed., Sec. 456; 2 Ohitty on Pleadings, 482; Adait v. Rogers, Wright, 428; Laerence v. Willoughby, 1 Minn., 87; Newburg v. Munshower, 29 Ohio St., 617; Toledo Com. Co. v. Glen Mfg. Co., 55 Ohio St., 217.
    
      Ira G. Taber, for defendants in error,
    cited the following authorities: Methodist Church v. Wood, 5 Ohio, 283; Elektron Mfg. Co. v. Electric Co., 4 Circ. Dec., 555; 8 C. C. R., 311; Smith v. Sewing Machine Co., 26 Ohio St., 562; Lewis v. Bank, 12 Ohio, 132; Section 148c, Revised Statutes; Brown v. State, 11 Ohio, 276; Watson v. Brown, 14 Ohio, 473; Anderson v. Kerns Draining Co., 14 Ind., 199; Lewis v. American Savings & Loan Assn., 98 Wis., 203.
   By the Court :

“At common law a corporation, when it sues, need not set forth its title in the declaration; but if issue be taken, it must show, by evidence upon the trial, that it is a body corporate, having legal authority to make the contract which it seeks to enforce, if the action be upon contract, or to sue in that character and capacity in which it appears in court. * * * The code does not require the title of the plaintiff to sue to be more specifically set out than was required at common law.” Smith v. Weed Sewing Machine Company, 26 Ohio St., 565.

It is therefore not necessary to aver in a petition that the plaintiff is a corporation, and if such averment is made in the petition it will not be held to be a material allegation, and will be regarded as mere surplusage, and a general denial to a petition containing such an averment will not impose upon the plaintiff the burden of proving at the trial that the plaintiff is a corporation. If the defendant desires to raise the issue as to whether the plaintiff is a corporation, he must specially plead and aver in his answer that the plaintiff is not a corporation, and has no right to contract or sue as such, as the case may be.

The same rule applies when a -corporation comes in by way of cross-petition.

If, hoAvever, a corporation is made a defendant in an action, and its charter, powers or franchises become the foundation of such action, the same must be specifically pleaded in the petition; and if the corporation be a foreign one, the name of the state by which, and the substantial terms in which, the charter, powers and franchises Avere granted, should appear in the petition. Devoss v. Gray, 22 Ohio St., 159.

Judgements affirmed.

Min shall, C. J., Williams, Burkist, Spear, Davis and Siiauok, JJ., concur.'  