Stroud's Creek Homeowners' Ass'n v. Brown , 1978 Tex. App. LEXIS 3265 ( 1978 )

OPINION ON MOTION FOR REHEARING

Defendants strenuously contend that this court “erred in holding that Defendants Brown and Newkirk were before the Court in their individual capacities at the time the Land Company’s Original Answer was filed.”

Brown and Newkirk were both general partners of the land company. Defendants assert that a judgment “could have been enforced against the assets of the Land Company, the-limited partnership, but not against the individual assets of Brown and Newkirk.” (Emphasis added). It is defendant’s contention that our holding on the waiver of the venue issue thus conflicts with the holdings in these cases: Frank v. Tatum, 87 Tex. 204, 25 S.W. 409 (1894); Glasscock v. Price, 92 Tex. 271, 47 S.W. 965 (1898); McManus v. Cash & Luckel, 101 Tex. 261, 108 S.W. 800 (1908); King v. Monitor Drill Co., 42 Tex.Civ.App. 288, 92 S.W. 1046 (1906); Feldman v. Seay, 291 S.W. 350 (Tex.Civ.App.—San Antonio 1927, no writ); Mims Bros. v. N.A. James, 174 S.W.2d 276 (Tex.Civ.App.—Austin 1943, writ ref’d, 141 Tex. 554, 175 S.W.2d 74); Caliva v. Texas Construction Material Co., 380 S.W.2d 641 (Tex.Civ.App.—Houston 1964, no writ).

We have read each of these cases and note that they were decided between 1894 and 1964. However, as we set forth in our original opinion in this case, there have been some important statutory enactments in the area of Texas Partnership Law; i. e., the Texas Uniform Partnership Act and the Texas Uniform Limited Partnership Act. We particularly rely upon the four statutory provisions cited in our original opinion in this case.

We adhere to our original holding that the two general partners (Brown and New-kirk), both of whom were served with citation, were properly before the court from the time that the original answer was filed, and thus, the filing of the answer resulted in the waiver of any venue complaint.

The motion for rehearing is overruled.