Sugg v. Thornton

• Decision Date: 23 December 1889
• Citation: 132 U.S. 524,33 L.Ed. 447,10 S.Ct. 163
• Parties: SUGG et al. v. THORNTON. 1
• Court: U.S. Supreme Court

132 U.S. 524

10 S.Ct. 163

33 L.Ed. 447

SUGG et al. v. THORNTON.¹

December 23, 1889.

Sawnie Robertson and W. O. Davis, for plaintiffs in error.

Wm. Warner, O. H. Dean, and Jas. Hagerman, for defendant in error.

FULLER, C. J.

James T. Thornton filed his petition in the district court of Cooke county, Tex., against J. W. Sacra, J. W. Wilson, Isaac Cloud, and E. C. Sugg & Bro., averring the latter to be a copartnership composed of E. C. Sugg and Iker Sugg, and that E. C. Sugg resided in Tarrant county, Tex., and Iker Sugg in Johnson county, Wyo., to recover on a promissory note for $26,964.05, purporting to have been signed by Sacra, Wilson, Cloud, and E. C. Sugg & Bro. The petition prayed for a citation to the defendants, and a notice to the defendant Iker Sugg, as provided by article 1230 of the Revised Statutes of Texas, and for judgment for the amount of the note, and for costs, and for general and special relief. All of the defendants were served in Texas except Iker Sugg, to whom notice and a certified copy of the petition were delivered under the statute, in Wyoming territory. Articles 1224, 1230, and 1346 of the Revised Statutes of Texas are as follows: '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. 1230. Where the defendant is absent from the state, or is a non-resident of the state, the clerk shall, upon the application of any party to the suit, his agent or attorney, address a notice to the defendant requiring him to appear and answer the plaintiff's petition at the time and place of the holding of the court, naming such time and place. Its style shall be 'The State of Texas,' and it shall give the date of the filing of the petition, the file-number of the suit, the names of all the parties, and the nature of the plaintiff's demand, and shall state that a copy of the plaintiff's petition accompanies the notice. It shall be dated and signed and attested by the clerk, with the seal of the court impressed thereon, and the date of its issuance shall be noted thereon. A certified copy of the plaintiff's petition shall accompany the notice.' 'Art. 1346. 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 ren- dered therein against such partnership, and against the partners actually served, but no personal judgment or execution shall be awarded against those not served.' 1 Sayles, Tex. Civil St. 417, 418, 448. Judgment was rendered by the district court in these words: 'This day came the plaintiff by his attorney, and the defendants having failed to appear and answer in this behalf, but wholly made default, wherefore the said James T. Thornton, plaintiff, ought to rec ver against the said J. W. Sacra, J. W. Wilson, Isaac Cloud, and E. C. Sugg & Bro., a copartnership composed of E. C. Sugg and 'Iker,' or I. D. Sugg,—the said 'Iker' Sugg and I. D. Sugg being one and the same person, and E. C. Sugg the partner served,—defendants, his damages by occasion of the premises; and, it appearing to the court that the cause of action is liquidated and proved by an instrument of writing,—it is ordered that the clerk do assess the damages sustained by said plaintiff; and, the said clerk now here having assessed the damages aforesaid at the sum of twenty-eight thousand one hundred and thirty-four dollars and ninety-nine cents, it is adjudged by the court that the said plaintiff do have and recover of the said defendants the sum of twenty-eight thousand one hundred and thirty-four dollars and ninety-nine cents, with interest thereon at the rate of ten per cent. per annum, together with his costs in this behalf expended, and that he have his execution. It is further ordered by the court that execution issue, for the use of the officers of court, against each party, respectively, for the costs by him in this behalf incurred.'

On December 5, 1885, J. D. Sugg filed a petition to vacate the judgment so far as it affected him and his individual property, and so far as it affected the property of the partnership of E. C. Sugg & Bro., upon the grounds that the note was not given for a partnership liability of his firm, but that the firm name was signed thereto as surety for Sacra, and without authority, it being outside the scope of the partnership; that the judgment did not dispose of the case as to him; that his name was not 'Iker' or I. D. Sugg, but J. D. Sugg sometimes called 'Ikard Sugg;' that the partnership of E. C. Sugg & Bro. owned property in the state of Texas, and was largely indebted; and that the assets of the firm would be required to pay its debts. The petition was sworn to, and sustained by the affidavits of E. C. Sugg and others. In reply, Thornton filed an answer asking that the judgment be corrected as to the name of J. D. Sugg, and alleging that J. D. Sugg and Iker Sugg were one and the same person, who, with E. C. Sugg, composed the partnership of E. C. Sugg & Bro.; that E. C. Sugg & Bro. owned property in Texas, Wyoming, and the Indian Territory, of the value of about a million dollars, and were attempting to dispose of their property with intent to defraud their creditors; that plaintiff had obtained a judgment lien against their property in Texas; and various facts tending to show that the note was properly signed, 'E. C. SUGG & BRO.;' and affidavits were filed in support of this answer. The district court proceeded to determine the issues thus raised, upon the affidavits, without objection, and overruled the motion to vacate and set aside the judgment, and entered an order directing the clerk to correct the judgment as asked by Thornton, so as to give J. D. Sugg's name correctly. To this action J. D. Sugg and E. C. Sugg & Bro. excepted, and gave notice of an appeal to the supreme court.

Article 1037 of the Revised Statutes of Texas provides: 'The appellant or plaintiff in error shall in all cases file with the clerk of the court below an assignment of errors, distinctly specifying the grounds on which he relies, before he takes the transcript of the record from the clerk's office, and a copy of such assignment of errors shall be attached to and form a part of the record; and all errors not so distinctly specified shall be considered by the supreme court or court of appeals as waived.' 1 Sayles, Tex. Civil St. 339. The defendants J. D. Sugg and E....