Burden v. J. C. Cross & Co.

| Tex. | Jul 1, 1871

Ogden, J.

The defendants in error obtained judgment in the district court against the plaintiff in error, on a promissory note executed by J. O. White as principal, and A. J. Burden as security, on which judgment Burden sued out a writ of error, and now asks a revision by ths court on account of errors claimed to have been committed in the court below.

There are two errors specified in the assignment fatal to the judgment of the district court, for which it must be reversed. The plaintiffs in the district court sued in their partnership name, without setting out the names of the persons composing the partnership. It is a well settled principle of practice under our law that, with a few exceptions, all parties materially interested in the the subject matter of the suit must be made parties thereto, and the cause at bar does not constitute one of the exceptions.

It could not reasonably be supposed that' the plaintiffs did not know the names of the persons composing their own firm, nor that the parties were so numerous that great delay and inconvenience would result, without any adequate benefit, or that any one of them was a citizen of a foreign country, as they allege that they are all citizens of Fannin county, Texas; nor do they assign any other reason for not specifying the names of the parties suing. The defendant had a right to know the names and residence of all the parties at whose suit he was called upon to answer; and a failure to set out, clearly and distinctly, each name composing the firm of J. C. Cross & Co., was an error of which the defendant had a right to complain. It appears from the record that citaticn was served on Burden, the surety, but that, after two or three ineffectual attempts to get service on White., the principal, the plaintiffs dismissed as to him and took judgment against Burden alone. Article 1449, Paschal’s Digest, provides, that “ no judgment in any such suit shall be rendered against the indorser or surety, unless judgment is at the same time rendered against the principal, except where the plaintiff dismisses as to the principal, because he resides beyond tbe limits of the State, or because he is insolvent.” The note sued on shows that plaintiff in error signed the same as surety, and neither of the reasons prescribed by the statute as exceptions was given for dismissing as to the principal. This therefore was error; and for these errors the judgment of the district court is reversed and the cause dismissed.

Reversed and dismissed.