Burton v. Roff

• Decision Date: 11 April 1925
• Docket Number: (No. 11131.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 275 S.W. 273
• Parties: BURTON et al. v. ROFF et al.
• Court: Texas Court of Appeals

275 S.W. 273

BURTON et al. v. ROFF et al.

(No. 11131.)^*

Court of Civil Appeals of Texas. Fort Worth.

April 11, 1925.

Rehearing Denied May 9, 1925.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by Geo. W. Roff, receiver of the North Texas Supply Company, against W. G. Burton and others. Judgment for plaintiff against all defendants except J. W. Sappington, and they appeal. Reformed, and as reformed affirmed.

Durwood Bradley, of Lubbock, and Burney Braley, of Fort Worth, for appellants.

Phillips, Trammell & Chizum, Chas. L. Terry, and Evan S. McCord, all of Fort Worth, for appellees.

BUCK, J.

Plaintiff, G. W. Roff, receiver of the North Texas Supply Company, in his first-amended original petition, complained of W. G. Burton, J. W. Sappington, R. L. Sappington, and G. I. Carlisle, and of the partnership of Burton-Sappington Syndicate, composed of the foregoing persons, and alleged that the North Texas Supply Company had sold and delivered to defendants certain goods, wares, and merchandise of oil well supply trade, to the amount of $1,817.10, and that payment had been made on said bill in the sum of $752.12, and credit had been given for an additional sum of $64.98, and he sued for a balance due of $1,000. Judgment was rendered for plaintiff, as said receiver of the North Texas Supply Company, for $1,000, with interest. The judgment recites that plaintiff represented in open court that it would no longer prosecute said cause against the defendant J. W. Sappington, and asked that said J. W. Sappington be dismissed with his costs, whereupon defendant J. W. Sappington was dismissed as a party defendant.

The court has filed findings of fact, in which he finds:

"That the defendant Burton-Sappington Syndicate is a copartnership of which W. G. Burton, G. I. Carlisle, R. L. Sappington, and J. W. Sappington are copartners."

W. G. Burton, R. L. Sappington, G. I. Carlisle, and the Burton-Sappington Syndicate have appealed.

The appellants urge that the dismissal of the partner, J. W. Sappington, operated as a dismissal of the copartnership, Burton-Sappington Syndicate, because a partnership can only be sued in the names of all the constituent members, and that, plaintiffs' suit being to compel payment of a firm debt, and the sole theory upon which it was sought to hold the individual defendants being their partnership liability, the judgment of dismissal as to J. W. Sappington, one of the partners, abated the whole suit, and the court was powerless to render judgment against the partners retained as defendants.

In Frank v. Tatum, 87 Tex. 204, 25 S. W. 409, E. C. Tatum sued the copartnership of Goldfrank, Frank & Co., composed of Max Goldfrank, Abram B. Frank, Simon Lavenberg, and Louis Lavenberg, and the copartnership of B. Openheimer & Co., composed of Barney Openheimer and Alexander Michael, and Cohen & Koenigheim, composed of Adolph M. Cohen and Alexander Koenigheim, and F. J. Hamer and F. H. Coleman. He dismissed the cause of action as to Simon Lavenberg, Louis Lavenberg, Max Goldfrank, A. M. Cohen, B. Openheimer, Alexander Koenigheim, F. J. Hamer, and Alexander Michael. But no entry was made dismissing as to the partnerships in their firm names of Goldfrank, Frank & Co., B. Openheimer & Co., and Cohen & Koenigheim. Upon a trial in the district court, Tatum recovered judgment against A. B. Frank and F. H. Coleman, from which Frank appealed. In the Court of Civil Appeals the appeal was dismissed because the judgment entered in the district court was held not to be a final judgment, for the reason that no disposition was made of the partnerships of Goldfrank, Frank & Co., B. Openheimer & Co., and Cohen & Koenigheim. The court said:

"The rule that a copartnership must sue or be sued by its members is so universally recognized that there is no need for discussion. The only statutory provisions in this state which bear upon the question are contained in the following articles of the Revised Statutes:

"`Article 1224 [now 1863]. In suits against partners the citation may be served upon one of the firm, and such service shall be sufficient to authorize a judgment against the firm and against the partner actually served.'

"`Article 1346 [now 2006]. Where the suit is against several partners jointly indebted upon contract, and the citation has been served upon some of such partners, but not upon all, judgment may be rendered therein against such partnership and against the partners actually served, but no personal judgment or execution shall be awarded against those not served.'

"The familiar rule, that all partners who are jointly bound upon a partnership contract must be joined as defendants in a suit upon it, is not affected by the foregoing articles of our statutes. Partnerships are not thereby invested with any of the characteristics of corporations, nor are they expressly or impliedly authorized to sue or be sued in their firm names, independently of their members. If it were true that plaintiff sought in his petition to maintain his action against the firms as such, the failure to dismiss as to them would not prevent the judgment from being final, for the reason that the court could not enter judgment against such partnerships as such, and the setting up of their names as defendants would not present any issue upon which the court could act. No issue remained undisputed of, because no issue could be made with a thing that has no legal existence. * * * When the suit was dismissed as to the members of the firms of B. Openheimer & Co. and Cohen & Koenigheim the court had no further jurisdiction of them, for the reason that they were in court only by means of these members of the copartnership, and went out of court with the members. In order to give the court jurisdiction to render judgment against the copartnership property of Goldfrank, Frank & Co. all of the members of the firm must have been parties to the suit, whether served or not. * * * When the suit was dismissed as to all the members of that firm except A. B. Frank, the court had no further authority to enter judgment against the partnership or its property, and there remained no issue between plaintiff and that firm which the court could adjudicate under the pleadings. In so far as the partnership was a party by reason of joining all of its members, it ceased to be a party when that joinder was destroyed by dismissing as to some of them, and it left A. B. Frank individually to answer instead of answering as a member of the firm of Goldfrank, Frank & Co."

The Supreme Court reversed the judgment of the Court of Civil Appeals, dismissing the appeal on the ground that no final judgment was shown, and remanded the case to the Court of Civil Appeals, with direction to reinstate the cause upon the docket of said court for trial upon its merits. This action by the Supreme Court was tantamount to a holding that judgment could be had against A. B. Frank, individually, for any liability shown to have been incurred by the firm of Goldfrank, Frank & Co.

In Glasscock v. Price, 92 Tex. 271, 47 S. W. 965, it was held that, where a suit against two firms, in each of which one Lyles was a member, was dismissed as to Lyles, and judgment rendered against such firms and against the members thereof, except Lyles personally, such judgment was of no effect against either the individual or partnership interest of Lyles, nor as against the partnership as such or its property held by each of the two firms, but that judgment could be entered against the partners served. To the same effect are the cases of Patten v. Cunningham & Ellis, 63 Tex. 666; Fernandez v. Casey-Swasey, 77 Tex. 452, 14 S. W. 149; Blumenthal v. Youngblood, 24 Tex. Civ. App. 266, 59 S. W. 290; Tramel v. Guaranty State Bank & Trust Co. (Tex. Civ. App.) 176 S. W. 65; Heidelberg Amusement Co. v. Mercedes Lumber Co. (Tex. Civ. App.) 180 S. W. 1133; Self Motor Co. v. First State Bank of Crowell (Tex. Civ. App.) 226 S. W. 428; McManus v. Cash & Luckel, 101 Tex. 261, 108 S. W. 800; Texas L. & C. Co. et al. v. Molina (Tex. Civ. App.) 258 S. W. 216.

In McManus v. Cash & Luckel, 101 Tex. 261, 108 S. W. 800, the court said:

"Nor do we find anything in the decision in the case of Scalfi v. State, 31 Tex. Civ. App. 671, 73 S. W. 441, which was by the Court of Civil Appeals and in which a writ of error was refused, in conflict with these cases. The opinion of Chief Justice Conner points out the distinction...