Opinion
No. 3381.
May 14, 1936. Rehearing Denied June 4, 1936.
Error from District Court, Reagan County; C. R. Sutton, Judge.
Suit by J. A. Finlayson against Tom R. McDowell and others. Judgment for defendants, and plaintiff brings error.
Affirmed.
On March 30, 1931, the defendant in error McDowell sued T. G. Holland and the plaintiff in error, Finlayson, in the district court of Reagan county, to recover damages for personal injuries sustained. Judgment was sought against the defendants jointly and severally and the copartnership of Finlayson and Holland composed of the individual defendants.
Citation returnable to the ensuing April term issued and was served April 3, 1931, on Finlayson.
Holland filed plea of privilege praying the venue be changed to Upton county, where he resided, or to Midland county, where Finlayson lived.
October 10, 1931, McDowell filed an amended petition. October 13, 1931, McDowell dismissed as to Holland and the partnership. Upon the same day, after hearing evidence, the court rendered judgment against Finlayson for $3,742. Finlayson did not answer.
October 26, 1933, the present suit was filed by Finlayson against McDowell and others not necessary to mention to set aside the judgment theretofore rendered. Upon trial without a jury, judgment was rendered denying the relief sought.
Nat Friedman, of Dallas, for plaintiff in error.
J. D. Burns and Kerr Gayer, all of San Angelo, for defendants in error.
The dismissal in the former suit as to Holland and the partnership did not abate the entire suit so as to prevent recovery of judgment against Finlayson. Burton v. Roff (Tex.Com.App.) 292 S.W. 159; Fowler Comm. Co. v. Charles Land Co. (Tex.Com.App.) 248 S.W. 314.
The petition in the former suit was based upon an alleged tort for which the partnership was liable, and the authorities cited also announce the settled rule in this state that partnership obligations bind the individual members severally as well as jointly.
The amended petition in the former suit did not set up a new cause of action so as to necessitate citation and service thereof upon Finlayson. The allegations of the amended petition and relief prayed differ in no material respect whatever from the original petition.
The judgment attacked recited due service and is regular upon its face. The court had jurisdiction of the subject-matter. In order to set the judgment aside, it was incumbent upon Finlayson to plead and prove a meritorious defense to the former suit. Brown v. Clippinger, 113 Tex. 364, 256 S.W. 254. This he did not do. So, if it be conceded the amended petition set up a new cause of action, the failure to give notice thereof affords no ground for reversal. Nor does the petition allege any fact excusing the failure to appear and defend the suit or move for new trial as is necessary in order to entitle Finlayson to the equitable relief now sought. Whittinghill v. Oliver (Tex. Civ. App.) 38 S.W.2d 896, and cases there cited.
The plea of privilege filed by Holland did not inure to the benefit of Finlayson. It does not purport to be in his behalf.
The assignment directed against rulings upon evidence are wholly without merit. Discussion thereof is unnecessary.
Affirmed.
WALTHALL, J., did not sit in this case.