Currie v. Stuart
| Decision Date | 04 April 1894 |
| Citation | 26 S.W. 147 |
| Parties | CURRIE et al. v. STUART et al. |
| Court | Texas Court of Appeals |
Appeal from district court, El Paso county; A. M. Walthall, Judge.
Action by J. R. Currie, Jacob I. Smith, and S. C. Fernandes against the firm of Stuart & McNair. Defendants obtained judgment on exceptions to the petition. Plaintiffs appeal. Reversed.
J. A. Buckler, Edwards & Neill, and Z. B. Clardy, for appellants.
Appellants filed a petition in the district court of El Paso county, in which it is alleged that appellants were on January 12, 1889, partners in the manufacture and sale of tombstones, headstones, footstones, and monuments, and had in stock 11 marble headstones and 13 marble monuments, of the aggregate value of $2,355; that on the 8th day of January, 1889, the appellees caused an execution to be issued under a judgment for $365 in favor of appellees against Jacob I. Smith and S. C. Fernandes, two members of appellants' firm, and levied on the partnership property aforesaid, and seized and sold the same, appellees becoming the purchasers thereof, and converting the same to their own use; that Currie was the owner of one-half of the partnership effects; and that the other members of the firm were indebted to said Currie. There was a prayer for judgment for the value of the property. Appellees specially excepted to the petition because J. I. Smith and S. C. Fernandes were improperly joined with J. R. Currie, and because there was no act alleged which could constitute a conversion, even as to J. R. Currie. This appeal is taken from a judgment sustaining the exceptions.
We are of the opinion that the court erred in sustaining the exceptions. Article 2295 provides the mode, and the only mode, of levying on the interest of a partner in partnership property. This statute does not contemplate the seizure of partnership effects under an execution against one of the partners, but provides that the levy shall be made by leaving a notice with one or more of the partners, or with a clerk of the partnership. The property is not taken from the possession of the partnership. The allegations in the petition show an illegal seizure and wrongful conversion of the partnership property of appellants, and the partnership was the proper party to institute and prosecute the suit. Howell v. Jones, 3 Willson, Civ. Cas. Ct. App. § 208; Middlebrook v. Zapp, 79 Tex. 32, 15 S. W. 258. Article 2295 was not passed until March 13, 1875, and the cases of De Forest v....
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Sumner v. Crawford
...to the clerk of the partnership, or to the trustee, as the case may be. Middlebrook v. Zapp, 79 Tex. 321, 15 S. W. 258; Currie v. Stuart (Tex. Civ. App.) 26 S. W. 147; Gunter v. Cobb, 82 Tex. 598, 17 S. W. 848; Coates v. Caldwell, 71 Tex. 21, 8 S. W. 922; Railway Co. v. Lewis, 81 Tex. 1, 16......
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Pittman v. Rotan Grocery Co.
...155; Linz v. Atchison, supra; Middlebrook v. Zapp, 79 Tex. 321, 15 S. W. 258; Gunter v. Cobb, 82 Tex. 598, 17 S. W. 848; Currie v. Stuart (Tex. Civ. App.) 26 S. W. 147. In no phase of the case, as presented, were appellees entitled to recover judgment for any of the merchandise in the hands......
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First State Bank v. Jones & Nixon
...partners, or with the clerk of the partnership. See Revised Statutes 1895, art. 2352. The levy in any other mode is wrongful. See Currie v. Stuart, 26 S. W. 147. These appellants are therefore liable for the legal consequences, as hereinbefore stated, of the wrongful levy We conclude that t......
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