Opinion
No. 7018.
November 17, 1926.
Appeal from District Court, Dallas County; Kenneth Foree, Judge.
Action by E. C. Alexander and wife against the Colorado River Syndicate Subscribers and others. Default judgment for plaintiffs. From the judgment denying defendants' motion for a new trial and to set aside the default, they appeal. Affirmed.
Stennis Stennis and J. H. Synnott, all of Dallas, for appellants.
Currie McCutcheon, of Dallas, for appellees.
E. C. Alexander and wife, Leone Alexander, sued the Colorado River Syndicate, alleging same to be a partnership, composed of several named individuals, and also sued Nathan Adams and Alex Sanger, individually as well as in the capacity of partners, for the sum of $934.50, for services rendered by said E. C. Alexander to said syndicate during 1917 and 1918. On October 18, 1921, none of the defendants having answered, the court rendered an interlocutory judgment by default with a writ of inquiry. On October 28, 1921, and before a hearing on the writ of inquiry, appellants filed a motion for a new trial and to set aside the default judgment and also a general demurrer and a general denial. Neither the motion nor the answer were verified. On December 21, 1921, Nathan Adams and Alexander Sanger filed an amended motion to set aside the default judgment, in which they seek to excuse their failure to employ counsel to file an answer, and in which they deny that the Colorado River Syndicate is a partnership. Nowhere is it denied that Alexander performed the services for the syndicate or that he was due the amount sued for; nor is the syndicate a party to said amended motion.
The only ground on which they seek to excuse their failure to file an answer is that Jed C. Adams had for several years represented said syndicate as its attorney; that the said Nathan Adams did undertake to have answers filed and "was under the impression that he had conferred with the said Jed C. Adams by telephone or otherwise and arranged with him for the filing of answers. * * *" The appellants were served with citation on August 18, 1921. In their verified motion they allege:
"That they have since learned that the said Jed C. Adams left the state during the latter part of July and was gone until some time in September on a trip to France."
Judgment was not taken until October 18th, long after his return. There is no showing that any of the defendants, appellants here, ever employed Jed C. Adams or any one else to represent them; nor is Jed Adams shown to have represented them in any of these proceedings after his return.
It is well settled that, to entitle a party to vacate a default judgment against him, two things must appear: (1) That he has a good excuse for not answering or making his defense on the trial; and (2) that he has a meritorious defense (Lawther Grain Co. v. Winniford [Tex.Com.App.] 249 S.W. 195), or, to state it differently, that he was prevented from presenting his defense in time, by some fraud, accident, or mistake, unmixed with negligence on his part (Stoudenmeier v. Bank [Tex. Civ. App.] 246 S.W. 761). A party's mistaken belief that he had employed counsel to take charge of his case is not sufficient grounds to vacate a default judgment. Ames Iron Works v. Chinn, 20 Tex. Civ. App. 382, 49 S.W. 665. Nor does the absence of his attorney from the state, even when employed, excuse him from employing other attorneys to represent him on appearance day. S.W. Surety Ins. Co. v. Ry. Co. (Tex.Civ.App.) 196 S.W. 276.
In the instant case, from their own motion, we think appellants have shown themselves negligent in the matter. That being true, it is unnecessary to consider the merits of their defense. In passing, however, we may say that in our opinion their motion fails to disclose a meritorious defense.
The questions remaining are, Do the pleadings and the proof sustain the judgment? Appellants contend that under appellees' pleadings the partnership, conceding that it existed, was dissolved in that appellees pleaded the death of two of the partners prior to the filing of the suit. In permitting the default judgment, the existence of the partnership was admitted. 34 C.J. 173, and Texas cases there cited. As a general rule, unless the articles of partnership provide otherwise, death of a partner dissolves the partnership. 30 Cyc. 653. And in such case the survivor, or survivors, have the power and duty of winding up the partnership business. 30 Cyc. 658; Roberts v. Nunn (Tex.Civ.App.) 169 S.W. 1086. And, in a suit against the partnership for a partnership debt created while the members were living, it is not necessary to join the heirs or legal representatives of the deceased partners. Lovelady v. Bennett (Tex.Civ.App.) 30 S.W. 1124. And as stated by Chief Justice Huff, in Roberts v. Nunn, supra (writ of error refused):
"A dissolved partnership continues in force In legal contemplation for the purpose of winding up its affairs until a full settlement has been had and all outstanding liabilities have been met."
Appellees' pleadings were sufficient to sustain the judgment rendered.
Appellants next insist that appellees' claim was an unliquidated demand, not a verified account authorized to be established under article 3736, R.S. 1925, and must be established by competent evidence under article 2157, R.S. 1925, and that the record fails to disclose competent evidence to sustain the Judgment. This contention is not sustained. Appellees introduced a statement, dated February 2, 1918, as follows:
"Dallas, Texas, February 2, 1918.
"The Colorado River Syndicate Subscribers, John N. Simpson, Chairman, to E. C. Alexander, Dr.
To salary and expenses for services rendered from July 1, 1917, to February 1, 1918 ....................................... $1,359 50 Less cash payment, November 12, 1977 ........ 250 00
$1,109 50 Less cash by Nathan Adams, Feb. 2, 1918 ..... 175 00
$934 50
"The State of Texas, County of Dallas.
"Before me, the undersigned authority, on this day personally appeared E. C. Alexander, who being by me duly sworn, on oath says that the foregoing and annexed account in favor of himself, the said E. C. Alexander, for the sum of nine hundred thirty-four and 50/100 dollars ($934.50) is, within the knowledge of affiant, just and true, that it is due and unpaid, and that all just and lawful offsets, payments and credits have been allowed. [Signed] E. C. Alexander.
"Sworn to and subscribed before me this 2d day of February, A.D. 1918. [Signed] J. C. Bird, Notary Public, Dallas County, Texas.
"The above statement of my own personal knowledge is true and correct. [Signed] Nathan Adams, Secretary of Colorado River Syndicate Subscribers."
Taken as a verified account under the statute, there may be doubt as to its sufficiency. But the indorsement that the statement is true and correct, signed by Nathan Adams, in his official capacity as secretary of appellant syndicate, makes it clearly, we think, a liquidated demand in favor of E. C. Alexander against the syndicate, the correctness of which is nowhere denied by the syndicate, and certainly sufficient proof as against a default. The case of Goodman v. Sanger Bros. (Tex.Civ.App.) 250 S.W. 248, is not in point here. In that case the verified account filed in evidence was against Goodman Fisher Company, alleged to be a corporation, and judgment was rendered against Abe Goodman individually. Clearly there the evidence did not support the judgment. No such facts exist in the instant case. It was also shown that Nathan Adams had orally on several occasions admitted the justness of said account, and stated that the syndicate would pay every cent of it. The testimony of Mrs. Alexander that the account had been assigned to her by E. C. Alexander was sufficient.
Finding no error in the record, the judgment of the trial court is affirmed.
Affirmed.