Geo. Scalfi & Co. v. State

• Decision Date: 21 March 1903
• Parties: GEO. SCALFI & CO. et al. v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

73 S.W. 441

GEO. SCALFI & CO. et al. v. STATE.^*

Court of Civil Appeals of Texas.

March 21, 1903.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

Action by the State of Texas against George Scalfi & Co. and others. From a judgment for plaintiff, defendants appeal. Affirmed.

T. L. Camp, for appellants. Lee Riddle, W. F. Martin, and W. E. McConnell, for the State.

CONNER, C. J.

This suit was instituted by the state of Texas, for the use and benefit of Palo Pinto county, on the 12th day of March, 1902, against Geo. Scalfi, Geo. Scalfi & Co., a firm composed of Geo. Scalfi and M. Savant, and against the American Bonding & Trust Company, of Baltimore City, Md., to recover the sum of $5,000 statutory penalty for breaches of the liquor dealer's bond of Geo. Scalfi and M. Savant, upon which the American Bonding & Trust Company was surety. Geo. Scalfi and M. Savant were retail liquor dealers, and were engaged in carrying on business in the firm name of Geo. Scalfi & Co. at Mingus, or Thurber Junction, in the county of Palo Pinto. They had filed with the proper officers of Palo Pinto county the statutory bond in the sum of $5,000, the American Bonding & Trust Company being surety; and it was alleged by the appellee that Scalfi & Co. had breached this bond on many occasions during the months of August and September by selling beer to Ed., Clyde, and Charley Graves, all being under the age of 21 years. These sales occurred during the months of July, August, and September of 1901. M. Savant was never served with process, nor did he appear by answer or otherwise. Geo. Scalfi and the surety company, however, were duly cited, and they each appeared and answered by demurrer and general denial, as did also the firm of Geo. Scalfi & Co. Before the trial, appellee amended, omitting complaint of breaches of said bond by reason of sales of intoxicating liquors to Charley Graves, and dismissed its suit as to M. Savant in his individual and separate capacity on the ground that he was a nonresident of this state, and his residence unknown, and that he was actually and notoriously insolvent. The trial resulted in a judgment for appellee in accord with its prayer for the sum of $1,500 and interest and costs against Geo. Scalfi, Geo. Scalfi & Co., and the American Bonding & Trust Company, and provided that the trust company, found to be secondarily liable, should have judgment and execution over against Geo. Scalfi and Geo. Scalfi & Co.

That the evidence sufficiently supports the material allegations of appellee's petition is undisputed, and the judgment should be affirmed unless error has been committed in the particulars hereinafter noticed. We think it quite apparent that the first, seventh, and tenth assignments should be overruled. The evidence on the trial tended to show that M. Savant was actually and notoriously insolvent, and that he was a non-resident of the state, whose residence was unknown; and it is therefore immaterial in any view that such proof was not made at the time the court heard and sustained appellee's motion to dismiss as to him. So, too, as to the objections made by the appellant trust company to the citation served upon it. The citation had attached thereto copy of appellee's petition, which, by reference, was made part of the citation, and the whole was duly served upon appellant trust company. A mere want of fullness in the citation, therefore, in stating the nature of appellee's demand, could not operate to the prejudice of the complaining appellant. Nor do we think a necessity existed for the court to give special charge No. 2, requested by appellants, defining the terms "agency" and "employé." The sales complained of were without doubt made, as alleged, by those for whose acts appellants were liable, and we hence, as before indicated, overrule the first, seventh, and tenth assignments.

The remaining assignments, however, raise more serious questions. The appellant surety company objected to the dismissal of M. Savant, and sought to continue the cause for service upon him, in all of which the court's action was adverse to said appellant, and to which error is assigned in the second, third, and fifth assignments. Objection is also made, as assigned in the fourth assignment, to the judgment against the firm of Geo. Scalfi & Co., the contention being that such judgment was unauthorized after the dismissal of M. Savant. The articles of our statute (Rev. St. 1895) deemed pertinent are as follows:

"Art. 1204. The assignor, endorser, guarantor and surety upon any contract, and the drawer of any bill which has been accepted, may be sued without the necessity of previously or at the same time suing the maker, acceptor or other principal obligor, when he resides beyond the limits of the state, or in such part of the same that he cannot be reached by the ordinary process of law, or when his residence is unknown and cannot be ascertained by the use of reasonable diligence, or when he is dead, or actually or notoriously insolvent."

"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. 1347. 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."

"Art. 1256. Where there are several defendants in a suit, and some of them are served with process in due time and others not so served, the plaintiff may either discontinue as to those not so served and proceed against those that are, or he may continue the suit until the next term of the court and take new process against those not served; and no defendant against whom any suit may be so discontinued shall be thereby exonerated from any liability under which he was, but may at any time be proceeded against as if no such suit had been brought and no such discontinuance entered.

"Art. 1257. Where a suit is discontinued as to a principal obligor no judgment can be rendered therein against an indorser, guarantor, surety or drawer of an accepted bill who is jointly sued, unless it is alleged and proven that such principal obligor resides beyond the limits of the state, or in such part of the same...