Staacke Bros. v. Walker & Chilcoat

• Decision Date: 25 March 1903
• Citation: 73 S.W. 408
• Parties: STAACKE BROS. v. WALKER & CHILCOAT.
• Court: Texas Court of Appeals

73 S.W. 408

STAACKE BROS. v. WALKER & CHILCOAT.

Court of Civil Appeals of Texas.

March 25, 1903.

Appeal from Navarro County Court; A. B. Graham, Judge.

Action in justice's court by Staacke Bros. against Walker & Chilcoat. Judgment was rendered for defendants, and from a judgment of the county court dismissing an appeal plaintiffs appeal. Reversed.

Staacke Bros., a firm composed of A. E., H. G., and Adele Staacke, on September 20, 1901, filed suit in the justice's court of Precinct No. 1 of Navarro county against Walker & Chilcoat, a partnership composed of Geo. B. Walker and M. Benjamin Chilcoat, to recover a balance of $166.35, alleged to be due on account. On the same day citation was issued and properly served on Geo. B. Walker, one of the defendants. The record does not show service on Chilcoat, the other defendant. On February 27, 1902, a trial of the case was had in the justice court, and judgment there entered as follows: "This day came the parties by their attorneys, and thereupon came a jury of good and lawful men, who, being duly impaneled and sworn, upon their oath do say they `find for the defendant.' It is therefore ordered and adjudged by the court that plaintiffs, Staacke Bros., take nothing by this verdict, and that the defendants, Walker & Chilcoat, do have and recover of said plaintiffs, Staacke Bros., all costs in this behalf expended, and that they have their execution for the same." Upon an appeal from the judgment by Staacke Bros. the defendants moved to dismiss the appeal on the following grounds: (1) The judgment was not final, in that it does not dispose of all the parties; (2) the judgment does not contain the essentials of a judgment for the defendants, in that it fails to state that plaintiffs take nothing by their suit, and to state or adjudge that "defendants go hence without day." The county court, upon hearing and considering the motion, sustained it, and entered judgment dismissing the appeal, from which judgment of dismissal Staacke Bros. have appealed.

Willie & Mayo, for appellants. Callicutt & Call, for appellees.

NEILL, J. (after stating the facts).

In an action against the partners for a partnership debt, service upon one partner only is sufficient to sustain a judgment against the firm, under which the interest of all its members in the property of the partnership and the separate property of the individual served may be subjected, but not the separate property of those not served. Rev. St. 1895, art. 1347; Alexander v. Stern, 41 Tex. 193; Guimond v. Nast, 44 Tex. 114; Burnett v. Sullivan, 58 Tex. 535; Hedges v. Armistead, 60 Tex. 276; Tex. & St. L. Ry. Co. v. McCaughey, 62 Tex. 271; Patten v. Cunningham, 63 Tex. 666; Sanger v. Overmier, 64 Tex. 57; Henderson v. Banks, 70 Tex. 400, 7 S. W. 815; Halsell v. McMurphy, 86 Tex. 102, 23 S. W. 647; De Camp v. Bates (Tex. Civ. App.) 37 S. W. 645; Sugg v. Thornton, 132 U. S. 531, 10 Sup. Ct. 163, 33 L. Ed. 447. In actions against partners, it is only when the plaintiff does not seek to subject the interest of all the members of the firm in the partnership property that he may discontinue as to those not served, and take judgment against those who are cited. Bates on...