Burnett & Ross v. Sullivan & Drennan

Willie, Chief Justice. The judgment rendered in this cause below' is exactly in accordance with article 1346 of the Bevised Statutes. The objection raised to it by appellant is that no discontinuance was entered as to Burnett at or before the time of entering judgment against the firm of Burnett & Boss and the member of the partnership who had been served with process. He claims that for this reason another .judgment disposing of Burnett will be required, making two in the same cause, in contravention of [538] article 1337 of the Revised Statutes. It is a sufficient answer to this objection that the statute does not require such discontinuance in cases like the present, but seems to contemplate that the mere taking of the judgment against the partner served, and the partnership, shall operate as an abandonment of further proceedings in the particular action against the other partner, so far as it is sought - to obtain execution against his individual property. [Opinion delivered February 13, 1883.] If a discontinuance as to the partner not served were entered, it is questionable whether or not the judgment could be rendered against the partnership property. That part of the judgment affects the interest of the partner not served as much as it does that of his co-partner. It is but proper that, for the purpose of having such interests reached by the proceedings, he should be brought into court in some way. The statute prescribes that this may be done through service on his copartner, ancl that such service shall be good to bind his interest in the firm property, though to reach his separate estate he must have legal notice in person. Previous decisions of this court made under former statutes, dif- ' fering in no material respect from our Revised Code on the subject of discontinuances, have allowed judgments to be taken for or against the party served without dismissal as to the other, and have held that this was no violation of the section which forbids more than one final judgment to be entered in the same cause. This was held in a case where the judgment went in favor of the defendant who had been brought into court, in the case of Reynolds v. Adams, 3 Tex., 167. In Burton v. Varnell, 5 Tex., 139, a case where the judgment went against such defendant without dismissing as to another party not served, the court said: “ It is no objection to the judgment in this case that the record does not disclose any final disposition of the case as to one of the- defendants. It discloses but one final judgment, which is .regular as to the defendant against whom it twas entered; and the question respecting the plaintiff’s right to have judgment against the other defendant cannot arise until the plaintiff shall have asked such further judgment. It will then, be time to urge the objection that but one final judgment can be given in the case, and to consider the question whether the case be within the prohibition.” We find no reasoh for holding the judgment improper, and it is affirmed. Affirmed.