"In the above-styled cause, which is pending in this court on appeal from the county court of Harris county, we deem it proper to certify for your decision the questions hereinafter propounded which arise upon the following statement of the pleadings and evidence, and the decision of which is material in the disposition of this appeal: The firm of Cash & Luckel filed this suit on January 25, 1905, against the sheriff of Galveston county and W. J. B. Moor and George McManus to enjoin the sale of certain property belonging to Joseph Franklin, which the sheriff had levied on under an execution issued on a judgment of the county court of Harris county in favor of the firm of Moor & McManus against Cash & Luckel. The property of Franklin was levied on because he was one of the sureties on the appeal bond in that cause. The plaintiffs, Cash & Luckel alleged the insolvency of Moor & McManus, and prayed to be permitted to offset against the judgment enjoined a judgment in plaintiffs' favor against Moor & McManus which they had procured in Jefferson county. The judgment enjoined will be referred to as the `Harris county judgment,' and the one sought to be offset as the `Jefferson county judgment.' Moor answered by general denial. McManus answered by general denial, and pleaded under oath that the firm of Moor & McManus was dissolved in 1902, and that the Jefferson county judgment, in so far as it sought to bind either him or the firm assets, was void on the face of the record; that the claim upon which it was based was an individual claim against Moor; further, that one-half the Harris county judgment had been assigned to Lovejoy & Malevinsky for their services in obtaining the judgment; further, that he, McManus, had expended $175 as proper expenses in procuring the Harris county judgment, which sum was a partnership liability and a prior claim upon the last-named judgment as partnership funds, and that it was agreed between him and Moor that he should be reimbursed for such expenditures out of the proceeds of said judgment. Lovejoy & Malevinsky intervened, setting up their claim to a half interest for the reason above stated, and claimed the balance of the judgment on an oral assignment to one Mary Walters in extinguishment of a judgment she held against Moor. They pleaded innocent purchase for value without notice both as to themselves and Mrs. Walters. Cash & Luckel answered the pleading of interveners by alleging, among other things, that they owned one half the claim upon which the Jefferson county judgment was obtained, and acquired the other half for value without notice of either of the alleged assignments. The trial, which was to the court without a jury, resulted in a general judgment in favor of Cash & Luckel, and the defendants and interveners have appealed.
"The material facts are undisputed, and are briefly as follows: Cash & Luckel, a firm engaged in the real estate business, were on the ____ day of ____, 1901, sued in the county court of Harris county by Moor & McManus, another real estate firm. Lovejoy & Malevinsky, a firm of lawyers, represented the plaintiffs therein for a contingent fee of half the judgment; one-half the claim being orally assigned to them. That suit resulted in favor of the plaintiffs therein. Cash & Luckel appealed, and Joseph Franklin and Mott were sureties on the appeal bond. The appeal resulted in an affirmance with judgment
also against the sureties. The execution which is sought to be enjoined was issued upon that judgment and levied as alleged. After its rendition, Mrs. Walters accepted a verbal assignment of the remaining half of Moor's interest in this judgment in discharge of a judgment she held against him. In 1902 Cash & Luckel brought suit in the district court of Jefferson county against the firm of Moor & McManus on a claim in the name of Moor, but which they alleged was a partnership liability against the last-named firm. Both defendants were served. McManus answered, contesting the liability of his firm, and averring the claim to be the individual debt of Moor. The case was called for trial on the 3d day of May, 1904, whereupon McManus appeared. The plaintiffs therein moved for a continuance, whereupon McManus moved that the cause be dismissed for want of prosecution. The plaintiffs therein then dismissed the suit as to McManus, and, renewing their application for continuance, the cause was continued as to Moor. The order of the court on the dismissal and continuance is as follows: `Cash & Luckel v. Moor & McManus. 3d day of May, A. D. 1904. This cause being called for trial, defendant George J. McManus moved to dismiss for want of prosecution, thereupon plaintiffs filed their motion to continue, and the court, having considered said motion for continuance and the answer of the defendant George J. McManus thereto, is of the opinion that said motion for continuance should be, and the same is hereby, overruled. Whereupon plaintiffs ask leave to dismiss as to defendant George J. McManus, whereupon it is ordered that the said George J. McManus be dismissed herefrom, and have and recover of plaintiffs E. M. Cash and L. C. Luckel all costs herein incurred, for which let execution issue. As to the defendant W. J. B. Moor, this cause is continued on motion of plaintiffs.' At the following term of the court, Moor still failing to appear, the plaintiffs Cash & Luckel took judgment against Moor individually and the firm of Moor & McManus. That judgment is the one referred to herein as the Jefferson county judgment, and is in the terms following: `Cash & Luckel v. Moor & McManus. No. 3,161. Fall Term, November 21, 1904. Jefferson County. On this day came on to be heard the above-entitled cause, and the plaintiffs, being present in open court, announced themselves ready for trial, but the defendant Moor & McManus, a firm composed of W. J. B. Moor and Geo. McManus, though duly served with the process of this court, failed to appear, but wholly made default, wherefore the court is of the opinion the plaintiffs ought to recover their damages as prayed, and upon inquiry the damages of plaintiffs assessed at the sum of $1,100. It is therefore considered by the court, so ordered, adjudged, and decreed, that plaintiffs, R. M. Cash and L. C. Luckel, composing the firm of Cash & Luckel, do have and recover of and from the firm and copartnership of Moor & McManus, composed of W. J. B. Moor and George McManus, and of and from the defendant W. J. B. Moor individually, upon whom citation was duly served as a member of said firm, the said sum of $1,100, with interest thereon at the rate of 6 per cent. per annum from the date of this judgment, together with all costs in this behalf expended; and, it appearing that at a former term of this court this action was dismissed as against defendant George McManus individually, the said dismissal is here made final in all respects, as so previously entered, with costs as to said McManus adjudged against the plaintiffs herein, and that he have his execution. It is the further order and judgment of the court that plaintiffs and all officers of the court have their execution for the enforcement of this judgment.' Moor was then insolvent and has been so ever since. The cause of action upon which the Jefferson county judgment was rendered accrued prior to the transfer by Moor to Mrs. Walters of his interest in the Harris county judgment, and appellees had no notice of said transfer until after this suit was brought. None of appellants had any notice of any claim by appellees against Moor, or the firm of Moor & McManus, at the time they acquired their respective interests in the Harris county judgment. In an opinion rendered at the last term of this court (108 S. W. 798) we held that the Jefferson county judgment was void as against the firm of Moor & McManus, and therefore could not be offset against the judgment sought to be enjoined which was one in favor of said firm. Appellees have filed a motion for rehearing, and, in view of the cloud cast upon our holding by the decision in the case of Scalfi & Co. v. State, 96 Tex. 559, 73 S. W. 441, from which a writ of error was denied, we have concluded that the question should be certified.
"Upon...
