Speak v. Kinsey , 17 Tex. 301 ( 1856 )

Lipscomb, J.

In this case a writ of garnishment was sued out against Speak, at the instance of Kinsey, administrator of Wells, on a judgment of his intestate against Butterworth. He answered that there was a balance of a judgment unpaid in favor of Butterworth against himself and his former partner ; stating the balance, and also a note of hand given by himself and former partner, still due, and placed by Butterworth in the hands of General Henderson, which note had been brought into Court by the said Henderson. The answer was not excepted to by the plaintiff. Judgment was awarded against Speak for the balance of the judgment referred to in the answer, less ten per cent., being the attorney’s lien for services, and also for- the note of hand. There is no disposition made by the judgment of the costs of the garnishment against Speak, nor does the judgment direct that the amount so condemned, when paid, shall be a bar against Butter-worth. The plaintiff in error asks to reverse the judgment on several grounds. We will notice those only that we regard as presenting anythiug worthy of observation.

The plaintiff contends that the judgment should only have been for half the amount, the partnership between Speak and Willard having been dissolved ; and that it was a partnership » debt. We answer, that the former partners are both jointly and severally liable for the whole partnership debt; and that the plaintiff in error made the joint answer of himself and Willard on a former garnishment a part of his answer. He took no exception, in the Court below, as to his liability. It would not, perhaps, bind Willard, if he should be able to show, in any future proceedings, that he had a meritorious defence; but Speak, who answered, cannot now set up such defence, unless Jhe could show mistake or fraud upon him in making his an* swers.

There is another objection better taken. The judgment of the Court should have been in favor of Speak for his costs, and it should have been, when paid, a bar to a recovery by Butter-worth of the amount condemned in the hands of Speak and Willard. For this error the judgment must be reformed, or, in other words, reversed and rendered as the Court below ought to have rendered it; which is ordered accordingly.

Reversed and reformed.