Middlebrook v. Zapp

• Decision Date: 23 January 1891
• Citation: 15 S.W. 258
• Parties: MIDDLEBROOK <I>et al.</I> v. ZAPP <I>et al.</I>
• Court: Texas Supreme Court

15 S.W. 258

MIDDLEBROOK et al. v. ZAPP et al.

Supreme Court of Texas.

January 23, 1891.

Appeal from district court, Fayette county.

Action by Middlebrook & Bros. & C. W. Meyer, a partnership, against B. L. Zapp, sheriff, and others, for a wrongful levy on plaintiffs' property. From a judgment for defendants, plaintiffs appeal.

R. H. Phelps and J. Lane, for appellants. W. H. Ledbetter, for appellees.

GAINES, J.

In Middlebrook v. Zapp, 73 Tex. 29, 10 S. W. Rep. 732, (which suit was brought in the court below by the appellants as a partnership composed of I. Middlebrook, R. O. Middlebrook, and Mrs. Julia Meyer, the wife of C. W. Meyer,) it was held that the husband, who only joined as party plaintiff pro forma, was the real partner and party at interest in the subject-matter of the litigation, and that the plaintiffs could not recover in that suit. For that reason the judgment for the defendants was affirmed. The present action was brought by the Middlebrooks and C. W. Meyer, as partners, to recover upon the same cause of action proved in the former suit. The grounds of the action are very fully stated in the opinion in that case, and need not be here repeated. The evidence showing that the levy was made by the actual seizure of a part of the partnership property, the court instructed the jury as follows: "From the undisputed evidence in this cause it appears that the levy complained of was not illegal, that the property seized was not in excess of the interest of the defendant in execution in the partnership property, and that whatever injury the plaintiffs may have sustained is not the result of any unlawful or wrongful act of the defendant. You are therefore instructed to return a verdict for the defendants." We are of opinion that this instruction was erroneous. In the opinion in the former case it is said: "Our statutes point out the mode of levying upon the interest of a partner for his individual debt. That mode not having been pursued in this case, and an unwarranted trespass having been committed, the defendants in this suit made themselves liable to the owners of the goods for whatever damages they sustained by reason of the unlawful seizure. Rev. St. art. 2295." But in order to support the ruling of the court below, counsel for appellees insist, in effect, that this construction is not correct; that the language of the article cited is merely permissive, and that it was not intended to prohibit a levy upon partnership property for the debt of one of the partners, as at common law. Counsel, in support of his contention, submits that the article in...