Frank v. Tatum

• Decision Date: 08 February 1894
• Citation: 25 S.W. 409
• Parties: FRANK v. TATUM.
• Court: Texas Supreme Court

25 S.W. 409

FRANK v. TATUM.

Supreme Court of Texas.

February 8, 1894.

Error from court of civil appeals of fourth supreme judicial district.

Action by E. C. Tatum against A. B. Frank, F. H. Coleman, and others. From a judgment for plaintiff against defendants Frank and Coleman, Frank appealed to the court of civil appeals. The appeal was dismissed, (23 S. W. 311,) and Frank brings error. Reversed.

C. Upson and Denman & Franklin, for plaintiff in error. Tarleton & Altgelt, John A. & N. O. Green, and C. A. Keller, for defendant in error.

BROWN, J.

On June 15, 1882, E. C. Tatum filed a petition in the district court of Bexar county, alleging as follows: "Now comes E. C. Tatum, and complains of Goldfrank, Frank & Co., B. Openheimer & Co., Cohen & Koenigheim, Frank H. Coleman, and F. J. Hamer," etc. The petition further alleged that defendant "Goldfrank, Frank & Co. is a copartnership composed of Max Goldfrank, Abram B. Frank, Simon Lavenberg, and Louis Lavenberg, and that defendant B. Openheimer & Co. is a copartnership composed of Barney Openheimer and Alexander Michael, and defendant Cohen & Koenigheim is a copartnership composed of Adolph M. Cohen and Alexander Koenigheim." The petition closes with a prayer "for citation of Goldfrank, Frank & Co., and service upon A. B. Frank, and for citation for B. Openheimer & Co., and Cohen & Koenigheim, with service upon either member of each firm." On the 9th day of February, 1885, plaintiff filed an amended original petition, in which he set out the usual formal statement of obtaining leave to amend, and that his amendment was in lieu of his original and supplemental petitions, and alleged "and complaining herein of Max Goldfrank, Abram B. Frank, Simon Lavenberg, Louis Lavenberg, Barney Openheimer, Alexander Michael, Adolph M. Cohen, Alexander Koenigheim, Frank H. Coleman, and F. J. Hamer." It is also alleged that the different firms are composed of the different members, just as in the original petition, and closes with substantially the same prayer. September 5, 1888, plaintiff filed in writing a dismissal as to Simon Lavenberg, Louis Lavenberg, Max Goldfrank, A. M. Cohen, B. Openheimer, and Alexander Koenigheim, having previously dismissed as to F. J. Hamer and Alexander Michael. The dismissal was entered in the minutes of the court, 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 trial in the district court, Tatum recovered judgment against A. B. Frank and F. H. Coleman, from which Frank appealed, and the appeal was dismissed by the court of civil appeals because the judgment entered in the district court is not a final judgment, for the reason that no disposition was made of the partnerships, Goldfrank, Frank & Co., B. Openheimer & Co., Cohen & Koenigheim, and especially of Goldfrank, Frank & Co.

It is a general rule that suits in courts can only be maintained by and against persons natural or artificial; that is, individuals or corporations. Moore v. Burns, 60 Ala. 270. Unless otherwise provided by statute, a copartnership is not considered a person, and must sue and be sued by its members. Dicey, Parties, p. 169, rule 20; Bates, Partn. §§ 1018, 1059; Tunstall v. Wormley, 54 Tex. 476; Blackwell v. Reed, 41 Miss. 103; Dunham v. Shindler, 17 Or. 256, 20 Pac. 326; Roberts v. Rowan, 2 Har. (Del.) 314; Harrison v. McCormick, 69 Cal. 621, 11 Pac. 456; Moore v. Burns, 60 Ala. 270; Richardson v. Smith, 21 Fla. 340; Page v. Brant, 18 Ill. 38; Revis v. Lamme, 2 Mo. 168; Seely v. Schenk, 2 N. J. Law, 55; Reid v. McLeod, 20 Ala. 576; Kamm v. Harker, 3 Or. 212; Smith v. Canfield, 8 Mich. 493; Burden v. Cross, 33 Tex. 685. California, Iowa, Ohio, Nebraska, and Alabama, and perhaps other states, have statutes which authorize suits to be brought by or against copartnerships in their firm names. The effect of such statutes is to give to the partnership recognition as "an entity or distinct legal person, distinct from its members." Bates, Partn. § 1059; Newlon v. Heaton, 42 Iowa, 593; Fitzgerald v. Grinnell, 64 Iowa, 261, 20 N. W. 179; Leach v. Wagon Co., 14 Neb. 106, 15 N. W. 232; Whitman v. Keith, 18 Ohio St. 134; Moore v. Burns, 60 Ala. 270. Proceedings under such statutes are in the nature of proceedings in rem, and judgment can be entered only against the partnership, not against the individual members of the firm. Bates, Partn. § 1064; Wyman v. Stewart, 42 Ala. 163. 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: "Art. 1224. 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." "Art. 1346. 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...