Hamilton v. Prescott

• Citation: 11 S.W. 548
• Parties: HAMILTON <I>et al.</I> <I>v.</I> PRESCOTT.
• Decision Date: 26 April 1889
• Court: Supreme Court of Texas

11 S.W. 548

HAMILTON et al.

v. PRESCOTT.

Supreme Court of Texas.

April 26, 1889.

Appeal from district court, Bexar county.

Ellis & Herron, L. N. Walthall, and John A. & N. O. Green, for appellants. Oscar Bergstrom, for appellee.

GAINES, J.

Langdon, Greenlay & Co. made an assignment to appellee for the benefit of their creditors. The appellants, being creditors of the assignors, brought suit against them, and sued out an attachment, and caused it to be levied by T. P. McCall, sheriff of Bexar county, upon the stock of goods transferred by the assignment. Appellee then brought this suit against McCall and the sureties on his official bond to recover the value of the goods so seized. The appellants having given McCall an indemnifying bond, he answered, and prayed that in the event the plaintiff should recover against him, that he have judgment over against appellants, and the sureties on their bond to him. They appeared, and filed an answer to plaintiff's petition. More than two years after the filing of the original petition plaintiff filed a supplemental petition, replying to their answer, in which he asked judgment directly against them. To this supplemental petition they pleaded the statute of limitations. The plaintiffs recovered a judgment against the sheriff and his sureties and against J. M. Hamilton & Co. and their sureties, in which it was ordered that the execution should first be levied upon the property of appellants before proceeding against that of McCall and his sureties. From this judgment J. M. Hamilton & Co. have alone appealed. There are many assignments of error shown by the brief, some of which call in question the court's ruling upon appellants' plea of limitation. Appellee has appeared by counsel, and filed a confession of error as to the court's ruling upon appellants' plea of limitation, and asks that the judgment, in so far as it is a judgment in his favor directly against appellants, be reversed, and here rendered for appellants. The appellants, replying by an amended brief, claim that upon the confession of error the judgment should be reversed and remanded as a whole. Our statutes require that but one final judgment shall be rendered in any case. Hence it has been held as a general rule that where a judgment in the lower court has been set aside as to one defendant it is set aside as to all, whether the order be so expressed or not. Long v. Garnett, 45 Tex. 400; Martin v. Crow, 28 Tex. 613. In Boone v. Hulsey, 71 Tex 176, 9 S. W. Rep. 531, the authorities were reversed upon the question, and an exception was recognized. The statute referred to is, however, applicable only to the trial courts, and consequently in this court no very uniform rule has been recognized. In Bayless v. Daniels, 8 Tex. 140, it is said that a judgment may be reversed as to one appellant, and affirmed as to another. In Houston v. Ward, Id. 124, a judgment was reversed and remanded as to one appellant, and rendered as to others. In Hopson v. Murphy, 4 Tex. 248, and in Burke v. Cruger, 8 Tex. 67, the judgments were affirmed as to the principal obligor on the contracts sued upon in the court below, and reversed and remanded as to the sureties. See, also, Johnson v. Galbraith, 17 Tex. 364. But in Burleson v. Henderson, 4 Tex. 59; Wood v. Smith, 11 Tex. 367; Willie v. Thomas, 22 Tex. 175; Dickson v. Burke, 28 Tex. 117; McRea v. McWilliams, 58 Tex. 328; Bradford v. Taylor, 64 Tex. 169; and McIlhenny v. Lee, 43 Tex. 205, — it is held that a reversal as...