B. R. Davis & Bro. v. Herman Schaffner & Co.

WILLIAMS, Associate Justice. The demurrer to the plea in abatement of Mrs. Davis, alleging nonjoinder of the representatives of J. P. Davis, was properly sustained. They had been partners, and the suit was originally brought against the partnership upon a debt of the firm, and service was had upon J. P. Davis. He died pending suit, and his death was suggested of record, and plaintiffs by supplemental petition procured service to be made upon Mrs. Davis, the other partner. She pleaded in abatement that the heirs of J. P. Davis should be made parties. Judgment was not sought against them, nor against the estate of J. P. Davis, but only against Mrs. Davis and the partnership assets. She was the surviving partner, as appeared from the pleadings, though not named as such, and could be sued on causes of action which had arisen against the firm. The fact that her partner had been originally served and that she had not been joined did not deprive plaintiffs of their right to make her a party after his death, and to prosecute their claim against her and the partnership assets, she having the capacity to represent both for such purposes. The plea of res ad judicata urged by appellants was not good. *124 The facts are, that the indebtedness asserted by appellees against appellants had been incurred by appellants to Deimel & Co. The latter assigned it to appellees, who notified appellants of such assignment. Thereafter Kohlman & Co., creditors of Deimel & Co., sued them and caused a garnishment to be served on appellants. The attorney representing the latter, not having been notified by them of the assignment by Deimel & Co. to appellees, answered the garnishment, admitting the indebtedness, and upon this answer Kohlman & Co. subsequently took judgment against appellees as garnishees. After the close of the term at which such judgment was rendered, appellants filed a motion to set it aside, and appellees intervened and joined them in their prayer to reopen the case, setting up their right to the debt under the assignment from Deimel & Co. The court dismissed the motion and intervention. This is the judgment which is pleaded as an adjudication of the claim asserted in this case by the appellees, who were plaintiffs below. It was shown at the trial that the court declined to set aside the judgment, on the ground that the applications came too late, and made no investigation into the merits of the claim asserted by appellees to the debt. It seems plain that this was no adjudication of the issue presented in this cause. The point decided on the motions was, that the parties could not get behind the judgment which had been rendered against the garnishees. Without going behind that judgment, the court in that case had no occasion, to investigate the title of appellees to the debt. The .parol‘evidence offered by appellees as to the ground upon which that judgment was based was,' perhaps, unnecessary, but it was admissible. When the issues adjudicated are not shown by the record, and the effect of the judgment depends upon the grounds upon which it is based, evidence is admissible to show such grounds. It sufficiently appears from the record of the proceedings that no such judgment was rendered as would preclude appellees from asserting this claim, and the paroi evidence, whether admissible or not, was harmless. There is nothing in the conduct of appellees, so far as it appears from the record, in connection with the garnishment proceedings, sufficient to preclude them from suing upon the debt which they acquired from Deimel & Co. It was the duty of appellants, when garnished by Kohlman & Co., having received notice of the assignment of the debt which they owed to Deimel & Co., to take proper steps to protect themselves from double liability. The service of the garnishment did not make it the duty of appellees to contest it. The law afforded appellants ample means by which to protect themselves, notwithstanding appellees were nonresidents ; and the attorneys of the latter were ready to assert their claim whenever their clients should be interpleaded in the garnishment suit. Arthur v. Batte, 42 Texas, 159 *125 Whether appellants were misled by the conduct of the attorney of Kohlman & Co. in the garnishment suit and prevented from making their defense or not, appellees are not shown to be in any way responsible for the proceedings which took place. The statement of the attorney who then represented appellees, made after the District Court had dismissed the motions to set aside the Kohl-man judgment, to the effect that he would not further assert appellee’s claim, was accompanied by the statement that he did not undertake thereby to bind his clients, but meant only that as an attorney he withdrew from the case, and would not prosecute it further. Appellees are not estopped by this. Appellants had no right to assume that appellees would not assert their claim, and in paying the money to Kohlman & Co. upon the faith of such a statement, took the risk of such action as appellees had the right to take. The judgment of the court was correct, and is affirmed. Affirmed. Delivered April 27, 1893.