Munzesheimer & Klein v. Otto Heinze & Co.

Gaines, Associate Justice. This was an attachment suit brought by appellees against appellants. The only ruling complained of in this [255] court is the refusal of the court below to quash the writ of attachment upon motion of defendants. The first ground of the motion was that the affidavit for the attachment did'iiot identify the cause and did not show the names of the plaintiffs on whose behalf it was made. The affidavit begins as follows: “ The State of Texas, Lamar County—Otto Heinze & Co. v. Munzesheimer & Klein.—Before the undersigned authority this day personally appeared Alexander Bernheimer, who being duly sworn says he is the agent of the plaintiffs in the above entitled cause, and that the defendants Max Munzesheimer and Larry Klein, doing business under the firm name of Munzesheimer & Klein, are justly indebted to plaintiffs,” etc. We think the name of the case at the head of the affidavit shows with reasonable certainty who were the plaintiffs intended to be designated. The body of the affidavit gives the individual as well as the firm names of the defendants, and describes them as partners and as defendants in the suit. The practice is universal in giving the title of a suit to state the names of the parties as they are stated in the affidavit in this case—the first names being those of plaintiffs and the latter those of defendants. It follows that we know as well from the affidavit who the parties to this suit are as if it had read Otto Heinze & Co., plaintiffs, against Munzesheimer Klein, defendants. The affidavit also sufficiently identifies the suit. It corresponds with the petition in the names of the parties and the amount claimed, and is-filed on the same day as the petition and bond. They must be presumed to have been filed together. The objection to the affidavit was not well taken. The second ground of the motion to quash the writ was that the bond was insufficient because signed in the plaintiffs* firm name. The signature is “ Otto Heinze & Co., by Alex. Bernheimer, agent.*’ The precise question here presented arose in Messner v. Lewis, 20 Texas, 221, and it was there held that the bond was good. In Donnelly v. Elser, 69 Texas, 282, it was decided that the fact that the name of a partnership appeared as sureties upon a bond, there being another surety, did not render it void. If a partnership signature be good as a surety, for a stronger reason it ought to be good when signed as principals. In the latter case either partner has power to sign the firm name to the bond so as to bind all, while in the former the partners who do not sign are not bound unless they give their consent. There is no error in the judgment, and it is affirmed. Affirmed. Delivered June 7, 1889.