*1 291 SOUTH WESTERN REPORTER 306 mоre. as thei-ein to the 1924 tax levies ed and parties rights plaintiffs determining inter sese the extent of their cation and res itself mus mus cents expends able to meet the $1.40 of which 80 13, 1924, unappropriated. penses made. leaving fore leaving sion No. levy of 5.2 cents on the waterworks exten- paying certain warrant fendants are levies judgment aggregating tionally therefore, for $1.081; of 15'cents to Bridge. following the decree the second Waters a specific bond issues tabulated in 273 S. mus to be sessments other than der the Waterworks City park Waterworks Fire Street Waterworks Sewer School School Street School As As shown In addition to the levies above, 1924 brought Total plaintiffs judgment, station. levied 42.8 cents of the levied powerless Imp. No. Imp. -The and duties No. No. 2. No. sufBcient adjudicated Ext. 15.3 cents. are bound the extent of 15.3 and 60 cents for levy bond and 50 cents of its total ordinance has levied 5 cents on the . of this amount 1 issue. ordinance has made a total and defendant [1] . table in cause No. 2. balance In cause that under fact assessed, No. 1. (W. Ext. No. 2. No. 2. No. 1. adjudicated aid adjudicated. above, required general expenses question. adjudicata W. for which no be levied for the shows, specific amounts that requirements entitled to have their coupon This falls short of regarding No. In cents was for In issues in that sixit. Both parties comply cover four items in the 15294 and in the third were August 13, purpose, all, for other 65.3 cents to make in the first column the which the door of judgment aggregating 37.8 also rates of taxation city may city, by issues sued on. Tbe ministration of its protected, requix-ed by indebtedness which general cents. of all issues there- bonded required expressly among is a final to this with the manda- It words, cents, the 1924 levies. required required with reference city $18,000 rights city levy of the manda- 45,000 30,000 it will render 60,000 75,000 40,000 25,000 25,000 20,000 20,000 will be taxing power specific 4,500 6,000 the full 1924: required by general revenue un- have other W. debt, had there- if the and addi- has made in column has been $.931 $.029 required and no required .066 .066 both of .066 .198 .052 .105 .077 .118 .154 adjudi- litigat- August levy manda- a total 916, in rights $1,081, levies fully thus seen, city $.600 $.100 ex- de- fox- as- .030 .120 .080 .025 .160 .050 diverting .035 tiff had obtained and agreed tween tract whether intervener is indebted not to defend- ant but to tract Garnishment 2. rests on defendant’s title versе claimant rights claim the mandamus awarded in cause No. 15294. And, third, mus cents, dissolved. BRADDOCK v. GAMBILL et al. taxing verting from the mandates of said manda- bridge 1. Garnishment levied in the ordinance of waterworks extension levies made (Court 1924; ($60,000) final ants below be be so rary injunction cerned. indebtedness for which no made, so far as the ed fund ed fund had become fixed. vener is ment suit and nishment suit. against garnishee. ment suit is Temporary injunction Estoppel <&wkey;88(l) Accordingly Admissions part Plaintiff rights general expenses. temporary injunction appealed levies out of the 1924 intervenеd, plaintiff adjudication not to street Jan. modified of defendant Waterworks No. 2 or power of 8 ($30,000) of Civil dissolved. defendant in which pay after impounded property of 16 cents. in fund plaintiff. by admitting assumption indebted to held not and defendant improvement ($45,000) defendant cannot be debt to of 50 cents other than in aid of subrogated parties 1927. Feb. temporarily enjoined, pending by assignee it is 15.3 cents out of the 80 cents as &wkey;>2l7 &wkey;>l05 the ordinance of other entered hampered expending to of this inquiry against garnishee, plaintiff, affairs, 18, 1927.) ordered thаt provide cents, Rehearing —Intervener now .Second, In all other No. 1 —Issue —Plaintiff in to defendant’s cannot ($11,000) suit is cause: has been before provision part had become Texas. are matters August rights made after assignee, of contract be- or otherwise di- that the defend- unappropriated as in' whether ($20,000) from assignee Denied modified and subrogated tried in school try letting First, us 12of trial August 13, of debt to of 3 (No. 251.) following impound- Eastland. closed, issue of garnish- has been respects from is ai-e con- garnish- con- of con- and his making tempo- plain- fixed, rights cents, cents, No. 3 from of ó gar-» ad- ad-
(Ss^For
cases
see same
KEY-NUMBER
all
and Indexes
*2
v. GAMBILL
BRADDOCK
s.w.y
Í
prevent
partner
against
pais
does not
from defeat-
dormant
in
did
constitute
an
ing application
partnership
assignee intervening
funds to
garnishment
of
suit from
in
judgment.
claiming impounded
of
fund.
against
&wkey;>!64Judgment
Partnership
garnish-
in-
Estoppel <&wkey;88(I)
11.
4.
—
—Intervener
partnership
not af-
admitting assumption
dividual member of
does
suit,
defend-
ment
of
partner’s
partnership
deny
fect
plaintiff,
estopped
dormant
interest
to
ant’s debt to
is not
garnished
payment of
of
to
dedication
debt.
fund
partner’s
partnership
Dormant
property
agаinst
by judgment
garnishment
is not affected
Admission
intervener
partnership,
one of
individual members of
suit
assumed defendant’s debt
judgment binding against partner-
estop
there is no
plaintiff
owed debt
to
would not
ship property.
denying
vener from
that he dedicated
fund to
of such debt.
Partnership
<&wkey;208(l) Damages
12.
for
—
wrongful garnishment
by.
cannot be recovered
Estoppel
estopped
<&wkey;88(l)—
from
5.
One
is
partner against
plaintiff
dormant
denying
fact ad-
fact not
inconsistent with
ing
partner,
individual
funds of
but dam-
mitted.
ages,
any,
against gar-
be obtained
estop one
Admission оf one fact does not
nishee.
denying
from
fact not
another
inconsistent
sought
plaintiff’s
garnishment
Where
of
that admission.
impound
to
individual
fund of
partner,
<&wkey;208(2)Partnership
partnership,
Partnership
funds
in-
member of
dormant
6.
—
satisfy judg-
impounded,
subject
garnishment
at-
to
cannot
recover
to
terested
fund
torney’s
damages against plaintiff
against partnership,
debt
for
but not for
fees and
ment
wrongful
damages may
garnishment,
partners.
be re-
but
of individual
against garnishee
part-
covered
if it retained
gar-
subject
Partnership
are not
funds
nership funds other
than individual
.funds of
of
members
individual
nishment
partnership,
for debt of
defendant.
subject
but are
judgment against partnership.
satisfy
Rehearing.
On Motion for
<&wkey;l64—
per-
partner,
Partnership
<&wkey;l
Appeal
177(7)
Dormant
7.
13.
and' error
—Intervener
mitting
against partnership
judgment
claiming
with-
judg-
fund
cannot have
pre-
disclosing identity,
competent
out
on
ment
reversal without
evidence
partnership
of
funds
vent
on which
base
it.
judgment.
satisfaction
reversing judgment
identity
partner,
plaintiff,
conceals his
Dormant
who
for
cannot be rendered
against
claiming
to be entered
impounded,
and suffers
favor of intervener
pаrtnership,
funds
competent
to claim
there was no
evidence on
where
which
partnership
based,
are not
could be
and intervener
judgment.
judgment by
against
in satisfaction
was not entitled to
against part-
&wkey;208(2)
Partnership
suit
—In
judg-
partner and
nership
to one
dismissed
Appeal
Taylor County Court;
remaining
partner
Carlos
in-
.
taken
ment
gar-
Speck, Judge.
dividually, partnership
funds cannot
nisheed.
Garnishment
R. H.
suit
Gambill
doing
against partners
filed
suit was
Where
City
Corsicana,
in which J.
Brad-
G.
name,
partnership
but was
business
Judgment
plaintiff,
dock intervened.
partner
taken
tо one
missed as
against
appeals.
.remanded,
intervener
Reversed and
individually,
remaining
with-
with directions.
any partnership,
no
out reference
partner-
partnership,
was obtained
Kirby, King
Overshiner,
Abilene,
&
satisfy
garnisheed
ship
not be
funds could
appellant.
judgment.
Scarborough
Wilson, Cunningham
&
&
<&wkey;2l9(4)Judgment
Oliver,
Willis,
Partnership
Abilene,
and T.
all of
M.
—
property
partnership
be obtained
cannot
appellees.
on
when suit
bers of
brought only
some mem-
partnership.
HICKMAN,
appeal
judg-
J. This
is from a
brought against
members
suit
Where
ment
in a
in which the
partnership
as to one or more
and dismissed
pellee
plaintiff,
R. H. Gambill was
procure
them,
bind-
cannot
county, Tex.,
Navarro’
a mu-
only pro-
property,
partnership
but can
nicipal
corporation,
partners
re-
individual
cure
tained
pellant,
Braddock,
J. G.
The
intervener.
suit.
necessary
understanding
to an
<&wkey;164
partner may
Partnership
—Dormant
questions
raised
were as
partnership
application
fund to
defeat
follows:
though
plain-
individual
M.
and D.
were
R.
his relation
not know
did
tiff
ners, doing business under
the name of Mitch-
recovering judgment
That
Contraсting
Company.
particular
ell
enterprise
did not know
member
individual
was en-
partner’s
relation
of dormant
in all
Indexes
and KEY-NUMBER
cases see same
<§^>For
SOUTH WESTERN REPORTER
gaged
was the
Ealce
construction of the
a discussion of each of which
spillway
unnecessary by
Halbert
cana,
in or
is
we
appeal.
near
Corsi-
the view which
adopt
presented by
construction
carried
the main issue
virtue of a contract with the
of Corsi-
cana.
seeks to sustain the
Prior
grounds:
to the execution
the trial court
of the contract
two
First:
*3
appellant
the
city,
and
That the
ownership
the
Mitchell was
is
to assert
upon
impounded
by
indebted to
then due.
fund,
Gambill
a
the
note which was
reason
acknowledgment
In
of his
consideration of an extension
that he had assumed
payment
of time for
indebtedness,
the
the
ap-
of such
of Kirk’s indebtedness to
pellee.
Mitchell and Kirk
tain notes.
appellant
executed to
Second:
Gambill cer-
That
the
was a
upon
'Suit was instituted
dormant
ment
these
with Kirk and that a judge-
they
due,
against
notes when
fell
but Mitchell
upon
could
Kirk would be
the
joint
ner, apрellant.
serving
property
not be located for the
of
cita-
of Kirk
and his dormant
upon him,
tion
and he was dismissed from
support
against
this suit
plea
and
estoppel
In
of
D.
his
of
the
individually.
pellee pleaded
Kirk
S.
sup-
and offered evidence in
Simultaneously
port
filing
suit,
with
the
of
of this
the fact that after
had ob-
Gambill
against
caused a writ of
tained
upon
to be
Kirk
the notes
against
Corsicana,
issued
calling
by
rights
the
of
him,
executed
Kirk and Mitchell to
and
had
upon
garnishee
the
what,
any-
respective parties
answer
after the
of the
thing, it
wаs indebted to D.
Kirk.
S.
The become fixed with reference to the
fund,
appellant
writ of
and
upon
did
the
admitted
not call
the
garnishee
part
attorney
appellee’s
of the
answer
that as a
as to
to
consideration
its indebtedness to
by
purchase
him his
Contracting
or
of
Mitchell
to Mitchell
for the
Com-
pany, partnership.
a
which the
the contract
By
Contracting Company
of
had with the
leave of the
the
J. G.
Braddock,
pay
plea
of
the notes
filed his
of intervention in
assumed to
he
garnishment case,
appelleе.
claiming
the
Kirk
that he was Mitchell and
By
impounded
appropriate assignments
the owner of the
com-
virtue
plains
assignee
of
Kirk.
appellant pleaded
of the action of
the
the trial court in ad-
of both Mitchell and
mitting
testimony
by appellee
By
plea
the
of his
offered
an amended
of intervention the
support
plea
estoppel
of
the
that he was a
with
by appellant
the admission
Kirk
that
and his
ten
testified to
the interest
owped
in the Mitchell
attorney
Company
Contracting
varied the terms of a writ-
and in its сontract
contract,
with the
and that such admission
Corsicana
which Mitchell had
formerly owned,
during
negotiations
impound- made
the
and that
course
the fund
compromise
ed
ject
effect
the writ of
a
between
was not sub-
appellee.
appeilee’s
garnishment,
plea
to
impounded
Our views of
because at the
time
estoppel
unnecessary
pass
render it
prop-
it was
for us to
erty
upon
assignments.
these
and Kirk and therefore not
plea
estoppel
to the individual
The substance
indebtedness
is
is
q£ joint
plaintiff
the intervener
S.
or
and several
owes the
indebted-
.to
right
therefore
than
ness of Kirk and Mitchell. There were
pleas
understanding
opinion.
to claim a
better
plaintiff
necessary
to the
be stated here for an
fund.
In dis-
posing
plea
of this
issues decided in
it is
consider
general
garnishment pro-
nature of the
plaintiff
ceeding.
who
appellee, replied
peti-
is the
tion
to the amended
The ultimate
issue
be determined be-
plaintiff
in intervention
various denials and tween
and intervener is the owner-
ship
plea
estoppel,
impounded property
a
which will be considered
of the
or fund in
opinion.
later in this
Plaintiff also
the hands of
filed a
plaintiff
subrogated
rights
cross-action in the
[1] The
to the
debt based
the same of the defendant
pleaded
estoppel,
impounded property
facts as
but this cross- his claim to the
or fund
plaintiff
action was
dismissed and will
adverse claimant rests
not be further noticed.
property,
title of the defendant to the
the.
Mensing
Upon
before the court
a trial
cause
Engelke,
67 Tex.
4 S. W.
v.
jury,
mo-
the aid of a
intervener’s
202; Medley
withоut
Co.,
v. American Radiator
27
spe-
quash
general
all of his
tion to
App. 384,
86;
Tex.
Civ.
S. W.
Fannin
demurrers were
County
cial
overruled
(Tex.
National Bank v. Gross
Civ.
was rendered that the intervener take
by
App.)
187;
Hubbell et
Farm
S. W.
al. v.
plea
intervention and that
his
App.)
ers’ Union Cotton Co.
Civ.
196
the
many
recover of
ment
the amount
his
W. 681. There are
decisions to
Kirk,
effect,
but the above decisions
same
the
indicate
est and
general
costs.
rule.
p. 777,
the intervener
Erom
12 R.
C.
nature of
L.
pealed.
clearly expressed
in this
assignments
by language:
of error are
"Various
made
(cid:127)
dormant
that
establish the fact that
individually,
fendant
the
the court determine that
a
to be carried on
the
ment in the
and, by
rem, garnishment
defendant in the
garnishee,
are to
him to
seeks to have
sue
done but for such admissions.
the defendant
alleged
plaintiff. This,
that he dedicated
fact does
fact not inconsistent
to sustain the
contained'
as follows:
the same
by
payment of that debt. The admission of one
trial court
If
the
He could have filed
place;
had assumed a debt due
debt to
in
evidence
his
stitute an
tract; but the admission that he owed the
indebted,
est of a dormant
such
nishee was directed
No
already
such
debt to
“Though
“The evidence
We shall
joint
The
We do not think
[4,
[3]
issue,
estoppel.
his
appellant,
damage
garnishment proceeding.
entirely
appellee
5] The admission
the evidence is
admissions
By
admission,
Furthermore,
second
owner and who
plea
subrogate
appellee
Kirk,
admission
deny
writ of
appellee,
been
because
to become indebted
dispute;
not
offered
his
not to the
in his seventh
can
resulted
estoppel
foreign
debt was
estop
Braddoek,
was not without his
ground
the writ of
the fact that he assumed the
rendered in’ favor of
determined in this case an
judgment,
be sustained
estoppel
in our
garnishment, impounded
being
would not
partner
lengthen
one
that would
no
plaintiff’s
nature of
but he cannot
of writ of
Kirk in his
one from
the facts
in effect an action
fact indebted to
his
are not sufficient
was done
that were the
to answer
change
appellee in
relied
with that
a
pais.
defendant,
wholly
sufficient to show that binding
appellee
рermitted
opinion,
owing
Kirk.
by appellant
made, judgment
brief, strongly urges
or of a man who was
and that the interest partners
is bound
appellee might estop
case.”
of the trial court is
the time when
garnishment
garnishee.”
counterproposition,
against appellant,
estop
name
upon by appellee
thereby
At the time
denying
result of
issue raised
pleaded
of status
He
only
not
own
insufficient to
appellee’s plea
on account of
opinion by
he cannot do.
on account
proceeding
intervеner is
Kirk,
BRADDOCK
admission.
garnishment
him to
had
the business
fund to the
would have
but to the to.claim
support
accomplish had suffered a
have been
name,
the inter- Tatum,
appellee, ment
question
appellee
to Kirk
right
remedy. rests
another
and the
passed.
the de- only procure judgment against the individual
was a
served
of the
deny
took
con
gar
con
had
is
of the
the
accepted
a dormant
¡
¡.w.)
partnership. Having
in this case.
whether or not
more of
rule invoked
basis of the no effort
a dormant
not tried
is no foundation
sideration
nishmеnt was issued for the
nership funds.
we do not feel called
v. GAMBILL
pounding
sion has been followed in
discussion
view of the
from other considerations. The case was
most favorable to
taken
erence to
partner.
our state that where one sues the members
has no
ners
with reference thereto is
the funds of the
judgment
against
of a
cannot be
dismissed as to Mitchell and a
or not it was
son that
the
against
the
not
to
ment.
interest
ship
debts of
subject
against
[10] Another
[6,7] Appellee
[9] It
[8] The rule
his
judgment against
permit
partnership property
еstablished rule
partnership,
are not
partnership
against
upon
doing
identity,
a dormant
application
87 Tex.
Mitchell and
in
them,
Contracting Company.
is well settled
rule that
one of the individual
If the
any partnership.
appellee
being
retained in the suit. Frank v.
subjected
of the trial court.
to be entered which is
this
partner
an
him
partnership,
partnership
his interest
partnership,
business under
subject
passing upon
partnership property, but can
funds that
he cannot
the assets of the
*4
estoppel against
partnership, and, by
regarding
suffiсient,
made to
in satisfaction of this
a dormant
partnership
and dismisses as to one or
judgment
invokes the
is: Would his interest
The
but such funds would
partner,
dvidence,
has no
is a
prevent
in this
individually,
theory,
the funds of a
appellee,
<§^>For