Amarillo Commercial Co. v. Chicago, R. I. & G. Ry. Co.
| Decision Date | 21 October 1911 |
| Citation | 140 S.W. 377 |
| Parties | AMARILLO COMMERCIAL CO. v. CHICAGO, R. I. & G. RY. CO. et al. |
| Court | Texas Court of Appeals |
Appeal from Potter County Court; W. M. Jeter, Judge.
Action by the Amarillo Commercial Company against the Chicago, Rock Island & Gulf Railway Company and others. Judgment for defendants on appeal from justice's court, and plaintiff appeals. Reversed and remanded.
Cooper & Stanford, for appellant. Gustavus, Bowman & Jackson, Turner & Whorton, Spoonts, Thompson & Barwise, F. M. Ryburn, and Madden, Trulove & Kimbrough, for appellees.
This suit originated in the justice court, and the cause of action or statement filed by appellants was in the ordinary form of an account in which the creditor was designated as the "Amarillo Commercial Company," without alleging it to be a partnership or naming the individuals composing the firm. In the citations, which were issued and served upon each of the defendants, the name of the party plaintiff is given as the "Amarillo Commercial Company, a partnership, composed of A. S. Stinett and J. P. De Saussure." The names of the partners do not appear upon the transcript in the justice court, and the judgment is entered in favor of the plaintiff, the "Amarillo Commercial Company" and against the Ft. Worth & Denver City Railway Company and the Gulf, Colorado & Santa Fé Railway Company, and in favor of the Chicago, Rock Island & Gulf Railway Company, discharging the latter with its costs. Both first-named companies filed appeal bonds, payable to plaintiff and to their codefendant, Chicago, Rock Island & Gulf Railway Company, in which the appellant is designated as the "Amarillo Commercial Company, a partnership composed of A. S Stinett and J. P. De Saussure" both as obligees and also in that part of the several bonds wherein the judgment appealed from is sought to be described, the names of the plaintiffs in the judgment are set out. In the county court the appellee Ft. Worth & Denver City Railway Company filed a written answer, in which, amongst others not necessary to be noticed here, this special exception appears for the first time: "Defendant Ft. Worth & Denver City Railway Company specially excepts to plaintiff's statements of cause of action and petition herein, because it appears therefrom that plaintiff is an unincorporated commercial partnership, and cannot maintain a suit in a partnership name, but can only sue in the name of the members composing same." This answer was adopted in this particular by its codefendants. This exception was sustained, whereupon appellant filed what is styled "Plaintiff's Amended Statement," identical with the original filed in the justice's court, except that the name of the creditor is set out in the amendment as the "Amarillo Commercial Company, a firm composed of A. S. Stinett and J. P. De Saussure." The defendants then moved the court to strike out the amended statement upon the following grounds: (1) Because it is an attempt to make a party plaintiff in the county court where there was no party plaintiff in a justice court which had a legal entity. (2) Because the amount in controversy was less than $200, and this court has not the original jurisdiction of said cause, and the making of a party plaintiff in county court when there was no party plaintiff in the...
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