Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1894-02-11
The Appellate Courts.
1N rHn srpRnNIE couRr.

Oppenheimcr Il Co., Cohen x Koenig'
holm. Frank II. Coleman and f. j.
Hamer. Allegations regarding the com
position Of the several firms were made
and service upon A. Is. Frank & Co.
and H. Oppenheimer s. Co. and Cohen *
Koenighem, with service upon either
member. In an amended petition plaintiff
comulained OF Max GOldirank. a. Il.
Trunk, s. Layenberg; Louis Lnyoirgyers'
b Opnenheimer, A. Michel, A. NJ. Cohen,
A. K6cnigheim. i. II. Coleman and f..
j. Hamcr. alleging that the different
firms were Composed Of the different
members lust as in the original petition
and closing with substantially the same
prayer Later plaintiff dismissed as "
an the individuals. except n. II. franh'
Inf no entry was made Diminishing as to
Inc partnerships in their frm names,
| Tha appeal of A. Il. Frank was dis
| missed by the court of civil appeals be-
| cause the augment entered IN the DIS
trict court was not q maj Juuglneht igr
the reason that no disposition was made
Of ihe partnerships and especially VI
| Goldfrank, Frank u 20.
TTnless otherwise provided by statute
! a co-nartnership Is not considered a per
| son aud must sue and be SUED py Tvs
ntory provisions which bear upon this
| question in this state are articles l22f
md 18l6 of the Revised Statutes.
| Partnerships are not invested thereby
! with any Of the characteristics OF cor
| pnratigns nor are they authorized to sue
| or be snpd ia their firm names indepcn-
| dcnty Of their members. If IT were true
| that plaintiff sought IN his petition TO
| maintain his action against the trm as
| such. the failure TO dismiss as 10 them
would not prevent Judgment from beng
final for the reason that the court could
fttt1s WuiWGI stlrn nNTlUeF-
ahins as such, aud the setting of their
names ns defendants would not present
any issue upon which the court could
act. No issue remained undlsposeu OF
because no issue could be made with
thina that has no legal existence. The
amended petition was substituted for all
other pleadinZs. II does not purport To-
mike the partnerships defendants, hut
declares against the individuals The al
legn tons in the amended petition as 70
partnerships were made TO bring ine
cRse under articles 1924 and l34B Il. $,
to show liability Of defendants for dam
ages occasioned by the leyying of the at
tnchmenis i'm the suits Instituted IN
the names Of the firms. When the
members Of the firm of Il. Oppenheimer
4, Co. and Cohen d koenigheim went out
of conrt by reason of dismissal the firms
went also. and the court had no further
Jurisdiction as 10 them. To give u
jurisdiction as to the firm of Goldfrank,
Frank n Co. all tho members must have
been parties to The suit whether served
or not. b, va. s., IS Tex, 53S. When
the dismissal as to the Other members Of
this firm was made II left A. i. Frank
Individually to answer. II Is unneces-
sary to consider other questions, for at
the time of the trial the pleadings pre-
scented no issues except as between plain
till and A B. Frank and r. II. Cole
man. Coleman did not appeal. Rcp.
The court of civil appeals erred in
holding that the Judgment Of the dis
tfict court was not iinal. II Is urged
that this court has no jurisdiction because
there was no final Judgment in the court
of ciyil appeals. The judgment Of dis
mssal with costs was q final judgment.
II Is further objected that this court is
without authority TO direct the court Of
civil appeals 10 reinstate the case on It's
docket This court certainly has au-
thOrity 20 review the judgment of dis
provision OF the statute for sending
mandate to that court, the authority TO
review the Judgment of necessity car
iies with 1t the power 10 have the error
corrected There Is no other way In
which this can be done except to remand
the case to that court with directions to
relnstate it. This will be done. Opinion
by Brown, A. j.
A. G. McKcen ct al vs.. J. II. James
ct nl,. from the Fourth district. The
land In controversy in this case having |
been purchased at n sale made by the as
signco of ,lohn IL. Herudon, bankrupt, |
sale aud conveyance having been made !
subject to membranes q question arises |
In the minds Of the court as TO the right |
Of uppelleea, who claim under die con
vcyanca to plead limitation In bar /
of the debt in order to defeat a foreclos- !
urc OF the mortgage, II mortgage it was. !
sNlsas 20 "a fdsf
plead the statute when the conveyance Is !
not made subject 10 the mortgage seems |
to be settled (Cason vs.. Chambers, ~ |
Tex, 8O5l, hut when the mortgagor |
conveys subject TO the mortgage the
land becomes as between the grantor I
and euntee primarily liable for the /
debt, aud the mortgagor occupies the po-
sitiOn Of a surety. Ought the giantee Ia |
an action to enforce tho lien to be per
mitted to prove that the debt Is barred
aud thereby compel HE grantor also to
iutcrpose the bar Of the statute or TO
pay the debt? II the last question
should I've answered in the negative then
the further question suggests itself
whether the same rule should apply TO
sale and conveyance by an assignee in
bankruptcy under !he provisions of the
bankruptcy law Of 1867. Counsel for
both parties are requested 10 present I
arguments ON the points suggested either
orally or In writing rs they may deem
proper The submission h set aside
aud The case set down for rcsubmsslon
on thc 22d of the present month. Sugges-
tons etc, by Gaines, A. j.
Alliance Milling Company Va, Eaton,
Guinon x Go. ct al, The firm of Eaton.
Cannon & Co, executed a deed Of trust
to John II. Marshal empowering him 10
sell Ia the usual course OF trade so much
OF tho property as was necessary 90 pay
the Indebtedness of Eaton, Guinon x
Go. to four other firms named In the
decd, and to pay himself > i-2 per ceut
commission on the amount realized, and
to pay other expenses including rent Of
stOrchouse.
Marshall took possession and two days
atterward tho Alliance Milling company,
also creditor, brought suit and sued
out writ Of attachment, Marshall and
the other creditors named in the deed
were made parties.
The finding oil the trial court is un
derst0od to be that at the time the at,
taclment was sued out the creditors Of
Eaiou, Guinon & Co., for whose benefit
the trust deed waa intended, had
OF its execution. and had not
then In amy manner assented 10 il. On
the trial plaintiff was given Judgment
and foreclosure OF attachment lien sub
inuf n,.........- fl,.. .tinftf.e 80 tt., ...,Q