Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-04-30
dncludlng findings Of facts and conclusions

OPINION.
dncludlng findings Of facts and conclusions
The appellee. George walshc. doing bust.
ness under the name OF George Nulsho a
Co. brought this suit March ~. lspO against
J. u. llulauey ~ surviving member W the
I d rc S b D0 s@ q s s2 Appssc oa SSs
ni verified account Tor goods sold hy him
10 ne arm N y ! nulaucy a Bro. ana the
attorneys fccs due upon Il promisory note
charged io have been executed hy that
hrm to appellee. The note referred 10 was
alleged 10 have been lost
Tho account was admittedly due OK.
ccpt the sum ~ Sli.3i aud the loss. exc.
Cuilon and amount " the note were salts.
tgriolily shown Ia accordance with the
ltncy s Bro, composed ~ y. L. Dulnucy and
J. u. nuluncy. was dissolved hy Tho death
or the former ON Jan. ~. 1870
April H., 1870 Judgment was rendered
IN favor ~ the plaintiff Tor the sum thus
established against -, H. DulHnpy az sur.
wing member N thc late pnrtncrship firm
NiduM capacity nu execution was awarded
against The individual property Of the
said j. - uulnupy. nH well nH against the
partnership assets " tine late arm " y. /.
Appellant nlcd what no. terms "a plea in
abatement in which admitting the dlHsU.
lulnu ~ the firm ~ a. T. nulaucy a liru
BY the death ~ the former ON Jan. N. 1870
ho alleges that y. J. Duluupy loft d viii
appointing j, ID. Duluupy, j. ". Germany
aud w. H. toWon as bis executors. "nl.
~ y. l. buluncy a Bro, uui tu clnsc out
the same 49, rapidly ns possible. he further
alleges That the defendant nS survivor " the
urm according 10 the Wish of the tpHtutor
h0l surrendered 60 the executors ui the
assets " the frm which was solvent ut The
death or y, l. nuaury ana Dee suggests
this suit.
Defendant then, after pleading gem
ernl demurrer ana general drniu fur.
Their nled what he deslguntcs ua eros,
bin. in which be- prayH that The executors
named should De- made parties defendant
AMI IN case Judgment should bee rendered
the nrst assets IN the hands on he cSscu,
tors, aud, altrrni tcly, that De- have iudg-
CONCLUSIONS or LAW.
!. The court WINS correct ia declining 10
delay the trial NJ this case Tor the purpose
u making the executors parties. The ais.
solution uf the hrm by the death VI ~ J.
pulancy. did not affect the several or lndi
properly sued ns surviving partner with.
out reference 10 the executors ~ Hates
on Iartnerrhip. sections ild 7An 1901
.. The executors were not even proper
parties Go the suit ugnlnst tho HufktVnr
Though the palutin in this case as d crpdi.
TOR m the urm could ''suc the surviving
partner as Hucli ana at the same time PRO
coed against tho estate ~ the deceased
partner as 90 the latter he could pursue
his remedy only through the probate rnurt
Aud In The manner provided Tor the settle.
ment of The estate of deceased persons
OGaut W.. licod - Texas, 81
g. The evidence leaves 40 reason 10
doubt the execution and subsequent loss
of the note declared upon. The books N
the hrm OF n. l. DulaIcy a iiro them.
selves showed, NJ Indicated 10y the tcAi
mOny Of the defendant himself that Tie
note had been executed. The Testimony Of
the witness McCaulcy, showing that tile
banking hrm OF Thos Trnmnlel a Co. .of
which he was u member. had received a
lost note Of the proper description, signed
"N 1. Duluney a Bro whose signature
he knew and believed 10 ho genuine. leaves /
no room Tor reasonable contention on this |
question.
4 The appellant cannot complain thar |
execution was awarded against The partner.
ship assets; as surviving partner he held /
ga the capacity n which he WAS sued. poe /
session aud control, De could not surrender /
10 the preiudices ~ The creditors.
p. We find the suggestion Of the appellee I
that this appeal Is prosecuted fur delay va /
De well founded and We conclude that the /
judgment should be- affirmed with no per /
cent damages. IL IL 40 ordered.
TARlTON.
chief Justice