" Rosenthal v. American Photocopy Equipment Co., supra at 449, Continental Supply Co. v. Hoffman, supra. In this connection, where the plaintiffs' petition alleges that it is a foreign corporation, as here, and does not disclose the absence of a permit, and does not disclose that the cause of action is intrastate, the burden is on the defendant to allege and prove the necessity of a permit and that the corporation has no permit. Rosenthal v. American Photocopy Equipment Co., supra at 449, Continental Supply Co. v. Hoffman, supra; Chase Bag Co. v. Stafford, 120 S.W.2d 823 (Tex.Civ.App. Texarkana 1938, no writ); See also Jay-Lor Textiles, Inc. v. Pacific Compress Warehouse Company, 547 S.W.2d 738 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. r. e.). Defendants contend that the provision in plaintiffs' petition regarding past transactions with the defendants prevents the application of the above rule because it shows that plaintiffs are transacting business in Texas.
The burden is on a defendant to plead this in a plea in abatement and to prove facts showing a foreign corporation cannot maintain its suit where the corporation's petition does not affirmatively show that the corporation either is transacting intrastate business or has a general or special office within the state. Continental Supply Co. v. Hoffman, 135 Tex. 552, 144 S.W.2d 253, 255 (Tex.Comm'n App.1940, opinion adopted); Aeronautical Corp. of America v. Gossett, 117 S.W.2d 893, 895 (Tex.Civ.App. Dallas 1938, no writ); Chase Bag Co. v. Stafford, 120 S.W.2d 823, 824 (Tex.Civ.App. Texarkana 1938, no writ); 17 Tex.L.Rev. 512; 19 Tex.L.Rev. 197; and 2 McDonald Texas Civil Practice, ยง 6.03.3 (Rev.Ed.1970). The allegations in a plea in abatement must be proven by evidence since those allegations, although sworn, do not constitute proof.
Where it does not affirmatively appear from the petition that the foreign corporation cannot maintain the suit, the burden is on a defendant to plead, by way of a plea in abatement, and prove facts showing the corporation cannot maintain the suit. Continental Supply Co. v. Hoffman, 135 Tex. 552, 144 S.W.2d 253 (Tex.Com.App.), opinion adopted; Rosenthal v. American Photocopy Equipment Co., supra; Chase Bag Co. v. Stafford et al., 120 S.W.2d 823 (Tex.Civ.App.-Texarkana, n.w.h.); Aeronautical Corp. of America v. Gossett, 117 S.W.2d 893 (Tex.Civ.App.-Dallas, n.w.h.); 17 Texas Law Review 512; 19 Texas Law Review 197; 2 McDonald, Texas Civil Practice, Sec. 6.03.3. The allegations of fact in a plea in abatement must be proven by evidence.
This was the precise holding of the only case we have found which is precisely in point. Chase Bag Company v. Stafford, Tex.Civ.App., 120 S.W.2d 823, no writ history. There are a number of other authorities that by way of dictum sustain this position.