Comer v. Brown

• Decision Date: 16 June 1926
• Docket Number: (No. 636-4497.)
• Citation: 285 S.W. 307
• Parties: COMER et al. v. BROWN.
• Court: Texas Supreme Court

285 S.W. 307

COMER et al. v. BROWN.

(No. 636-4497.)

Commission of Appeals of Texas, Section B.

June 16, 1926.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by A. C. Brown against M. B. Comer and others. Judgment for defendants was reversed and rendered in part by the Court of Civil Appeals (276 S. W. 787), and defendants bring error. Affirmed.

Turner, Seabury & Springer, of Eastland, and Callaway, Dalton & Callaway, of Dallas, for plaintiffs in error.

Thos. J. Pitts and Grisham Bros., all of Eastland, for defendant in error.

SPEER, J.

A. C. Brown sued Gorman Home Refinery and a large number of individuals, alleging that the refinery was a joint-stock company unincorporated and the individuals were stockholders therein, and, as such, were liable jointly and severally as partners for the refinery's debts. The cause of action was for certain debts of the partnership, some of which were evidenced by checks which had been dishonored and some of which were evidenced by stated account. The trial court instructed the jury to find for plaintiff upon the account stated in the sum of $4,473.23, with legal interest, which the jury did. He further instructed the jury to find against the plaintiff as to that part of the cause of action evidenced by checks, but, having found from the testimony that the plaintiff had already recovered from certain other members of the partnership an amount exceeding the amount still due on the stated account, and inasmuch as the maker of the checks had not been notified within two days after the receipt of the checks of the failure of the bank to pay them, the maker was thereby discharged under the Negotiable Instruments Act (Vernon's Ann. Civ. St. Supp. 1922, arts. 6001 — 1 to 6001 — 197), he rendered judgment for all of the defendants then before the court. Prior to the final judgment, the court sustained pleas of privilege by certain defendants, and ordered the cause as to them transferred to the proper counties. The Court of Civil Appeals upon Brown's appeal affirmed the judgment of the trial court. 276 S. W. 787.

The points relied upon for reversal are few, but well marked. First, it is contended that the appeal should have been dismissed in the Court of Civil Appeals for want of jurisdiction, because the judgment appealed from was not a final judgment in that it failed to dispose of the defendants Lewis Otto, R. A. and A. J. Fellers. It is true the final judgment entered by the trial court does not specifically dispose of these defendants. It makes no mention of them. But there was no occasion for the court to mention them in such final order. The court had previously entered his orders upon their respective pleas of privilege transferring the cause as to them to the counties of their respective residences. These orders are contained in the record and do not appear to have been in any wise appealed from, and their effect was to eliminate these defendants from further consideration in the case then pending before the court. Counsel for plaintiffs in error insist that, perforce of the statute which declares there shall be only one final judgment rendered in any cause (article 1997 [Rev. St. 1911]), the effect of sustaining the plea of privilege of any defendant in the case was necessarily to transfer the entire case as to all parties and issues to the county of that defendant's residence. They cite in support of this contention the case of Hickman v. Swain, 106 Tex. 431, 167 S. W. 209. The statute relied upon has no significance in the case, and the authority cited is not apt. The numerous individual defendants in this case were sued upon their partnership liability for the debts of the refinery firm. The cause of action was therefore a joint and several liability as to all and each of such defendants. Frank v. Tatum, 87 Tex. 204, 25 S. W. 409; McManus v. Cash, 101 Tex. 261, 108 S. W. 800; Fowler Commission Co. v. Land (Tex. Com. App.) 248 S. W. 314; Glasscock v. Price, 92 Tex. 271, 47 S. W. 965. It was not necessary, except as against the company as such, that all of the partners be sued, but any one, or any number less than the whole, of such partnership, might be sued upon his or their individual liability and a recovery had. So that there may be maintained as many suits as there are individual partners, and each would be a separate "cause" within the meaning of the statute limiting the right of the court to enter more than one final judgment. Of course, in such a situation, there could only be one satisfaction, but this is beside the question.

Now, the case of Hickman v. Swain does not hold otherwise. It appears in that case that the cause of action was...