There is color for a motion to dismiss a writ of error to a
state court for want of jurisdiction if it appear that no federal
question was raised on the trial of the cases, but that it was made
for the first time in the highest appellate court of the state
sitting to review the decision of the case in the trial court.
The provision in the Revised Statutes of Texas that when service
is made in an action against a partnership upon one of the firm,
the judgment may be rendered against the partnership and against
the member actually served (§ 1224), and the provision directing
the manner of the service of process upon a nonresident or an
absent defendant (§ 1230) are not repugnant to the Constitution of
the United States.
A judgment in Texas against a partnership, and against one
member of it upon whom process has been served, no process having
been served upon another member who is nonresident and absent,
binds the firm assets so far as the latter is concerned, but not
his individual property.
Motions to dismiss or affirm. The case is stated in the
opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Page 132 U. S. 525
James T. Thornton filed his petition in the district court of
Cooke county, Texas, against J. W. Sacra, J. W. Wilson, Isaac
Cloud, and E. C. Sugg & Bro., averring the latter to be a
co-partnership composed of E. C. Sugg and Iker Sugg, and that E. C.
Sugg resided in Tarrant County, Texas, and Iker Sugg in Johnson
County, Wyoming, to recover on a promissory note for $26,964.05,
purporting to have been signed by Sacra, Wilson, Cloud, and E. C.
Sugg & Bro. The petition prayed for a citation to the
defendants, and a notice to the defendant Iker Sugg, as provided by
article 1230 of the Revised Statutes of Texas, and for judgment for
the amount of the note, and for costs, and for general and special
relief. All of the defendants were served in Texas except Iker
Sugg, to whom notice and a certified copy of the petition were
delivered under the statute, in Wyoming Territory.
Sections 1224, 1230, and 1346 of the Revised Statutes of Texas
are as follows:
"Art. 1224. In suits against partners the citation may be served
upon one of the firm, and such service shall be sufficient to
authorize a judgment against the firm, and against the partner
actually served."
"Art. 1230. Where the defendant is absent from the state or is a
nonresident of the state, the clerk shall, upon the application of
any party to the suit, his agent or attorney, address a notice to
the defendant requiring him to appear and answer the plaintiff's
petition at the time and place of the holding of the court, naming
such time and place. Its style shall be 'The State of Texas,' and
it shall give the date of the filing of the petition, the file
number of the suit, the names of all the parties, and the nature of
the plaintiff's demand, and shall state that a copy of the
plaintiff's petition accompanies the notice. It shall be dated and
signed and attested by the clerk, with the seal of the court
impressed thereon, and the date of its issuance shall be noted
thereon. A certified copy of the plaintiff's petition shall
accompany the notice."
"Art. 1346. Where the suit is against several partners jointly
indebted upon contract, and the citation has been served upon some
of such partners but not upon all, judgment may be rendered
Page 132 U. S. 526
therein against such partnership and against the partners
actually served, but no personal judgment or execution shall be
awarded against those not served."
1 Sayles Texas Civil Statutes, 417, 418, 448.
Judgment was rendered by the district court in these words:
"This day came the plaintiff by his attorney, and the defendants
having failed to appear and answer in this behalf, but wholly made
default, wherefore the said James T. Thornton, plaintiff, ought to
recover against the said J. W. Sacra, J. W. Wilson, Isaac Cloud,
and E. C. Sugg & Bro., a co-partnership composed of E. C. Sugg
and 'Iker,' or I. D. Sugg, the said 'Iker' Sugg and I. D. Sugg
being one and the same person, and E. C. Sugg the partner served,
defendants, his damages by occasion of the premises, and it
appearing to the court that the cause of action is liquidated and
proved by an instrument of writing, it is ordered that the clerk do
assess the damages sustained by said plaintiff, and, the said clerk
now here having assessed the damages aforesaid at the sum of
twenty-eight thousand one hundred and thirty-four dollars and
ninety-nine cents, it is adjudged by the court that the said
plaintiff do have and recover of the said defendants the sum of
twenty-eight thousand one hundred and thirty-four dollars and
ninety-nine cents, with interest thereon at the rate of ten percent
per annum, together with his costs in this behalf expended, and
that he have his execution. It is further ordered by the court that
execution issue for the use of the officers of court against each
party respectively for the costs by him in this behalf
incurred."
On December 5, 1885, J. D. Sugg filed a petition to vacate the
judgment so far as it affected him and his individual property and
so far as it affected the property of the partnership of E. C. Sugg
& Bro. upon the grounds that the note was not given for a
partnership liability of his firm, but that the firm name was
signed thereto as surety for Sacra, and without authority, it being
outside the scope of the partnership; that the judgment did not
dispose of the case as to him; that his name was not "Iker" or I.
D. Sugg, but J. D. Sugg,
Page 132 U. S. 527
sometimes called "Ikard Sugg;" that the partnership of E. C.
Sugg & Bro. owned property in the State of Texas and was
largely indebted, and that the assets of the firm would be required
to pay its debts. The petition was sworn to, and sustained by the
affidavits of E. C. Sugg and others.
In reply, Thornton filed an answer asking that the judgment be
corrected as to the name of J. D. Sugg and alleging that J. D. Sugg
and Iker Sugg were one and the same person, who, with E. C. Sugg,
composed the partnership of E. C. Sugg & Bro.; that E. C. Sugg
& Bro. owned property in Texas, Wyoming, and the Indian
Territory of the value of about a million dollars, and were
attempting to dispose of their property with intent to defraud
their creditors; that plaintiff had obtained a judgment lien
against their property in Texas, and various facts tending to show
that the note was properly signed, "E. C. Sugg & Bro.," and
affidavits were filed in support of this answer. The district court
proceeded to determine the issues thus raised upon the affidavits,
without objection, and overruled the motion to vacate and set aside
the judgment, and entered an order directing the clerk to correct
the judgment as asked by Thornton so as to give J. D. Sugg's name
correctly. To this action J. D. Sugg and E. C. Sugg & Bro.
excepted, and gave notice of an appeal to the Supreme Court.
Article 1037 of the Revised Statutes of Texas provides:
"The appellant or plaintiff in error shall in all cases file
with the clerk of the court below an assignment of errors
distinctly specifying the grounds on which he relies before he
takes the transcript of the record from the clerk's office, and a
copy of such assignment of errors shall be attached to and form a
part of the record, and all errors not so distinctly specified
shall be considered by the supreme court or court of appeals as
waived."
1 Sayles' Texas Civil Statutes 339.
The defendants J. D. Sugg and E. C. Sugg & Bro. filed such
assignment of errors, in these words:
"Now come the defendants J. D. Sugg and E. C. Sugg & Bro.
and assign errors as follows: 1. The court erred in overruling the
motion of defendant J. D. Sugg to vacate the
Page 132 U. S. 528
judgment herein. 2. The judgment is erroneous in not showing any
disposition of the case as to defendant J. D. Sugg, otherwise
called 'Iker Sugg.' 3. Though defendant J. D. Sugg was a party to
this suit, there was no discontinuance as to him or any disposition
of the case as to him, in said judgment. 4. The record shows that
the court had no jurisdiction of defendant J. D. Sugg. 5. The
pretended notice served upon defendant J. D. Sugg was without
authority, and a nullity. 6. The court erred in permitting the
judgment herein to be corrected."
The case was then taken by appeal to the Supreme Court of Texas,
and on the 8th day of May, 1888, that court adopted the opinion of
the commission of appeals, which is certified as part of the
record, and affirmed the judgment of the district court.
The opinion, after stating the facts, points out that J. D.
Sugg, having submitted to a trial of the issues raised upon his
petition and upon affidavits, could not then be heard to complain
of the result, and as the affidavits were conflicting in regard to
the want of authority to sign the firm name to the note, holds that
the judgment should not be disturbed, and thus concludes:
"It is contended that the judgment is erroneous because it makes
no disposition of the case as to appellant. The judgment is not
against him, does not discontinue the case as to him, nor does it
contain any allusion to him except in the use of his name as
descriptive of the partnership of E. C. Sugg & Bro. If the
judgment does not in terms or legal effect dispose of the case as
to all defendants, it is not a final judgment, and this appeal
could not be entertained. Appellant was a nonresident of the state,
and the court could acquire no jurisdiction of his person except by
his appearance and voluntary submission to the jurisdiction. This
he might have done, and made any defense to the suit that any
citizen of this state would have been entitled to make. The
judgment rendered was the only judgment that could have been
rendered, and we think it a final judgment. The court retained
complete control of the judgment during the term at which it was
rendered,
Page 132 U. S. 529
and did not err in permitting it to be amended as to the name of
appellant so as to correctly describe the partnership against which
the judgment was entered."
"We find no error in the record requiring reversal, and are of
the opinion that the judgment of the court below should be
affirmed."
The cause was thereupon brought to this Court by writ of error,
allowed by the Chief Justice of the Supreme Court of Texas, by
endorsement upon the application therefor, in which it is stated
that the allowance is made without assent's being given to all the
statements contained in the application. The case now comes before
us on a motion to dismiss or affirm.
Plaintiffs in error contend that the judgment against the firm
of E. C. Sugg & Bro., under which the property of the
partnership might be seized and sold, was not due process of law
under the Fourteenth Amendment to the Constitution of the United
States, and that articles 1224 and 1230 of the Revised Statutes of
Texas, under which the judgment was sought to be sustained, were
repugnant to that amendment. It does not appear that any such
question was raised in the state courts. It is stated in the
assignment of errors in the supreme court that "the record shows
that the court had no jurisdiction of the defendant J. D. Sugg,"
and that "the pretended notice served upon defendant J. D. Sugg was
without authority and a nullity," but there was no error assigned
that the district court had no jurisdiction of the co-partnership
of E. C. Sugg & Bro.
As the supreme court of the state was only authorized to review
the decision of the trial court for errors committed there, and as
J. D. Sugg challenged the judgment on the merits, and the decision
was against him, it is clear that there is color for the motion to
dismiss, predicated upon a denial of the existence of a federal
question so presented as to be available.
The rule applied by the supreme court in respect to the action
of the district court on the motion to vacate is thus expressed by
Judge Brewer in
Burdette v. Corgan, 26 Kan. 102, 104:
Page 132 U. S. 530
"The motion challenged the judgment not merely on jurisdictional
but also on nonjurisdictional grounds, and whenever such a motion
is made, the appearance is general, no matter what the parties may
call it in their motion.
Cohen v. Trowbridge, 6 Kan. 385;
Fee v. Big Sand Iron Co., 13 Ohio St. 563;
Grantier v.
Rosecrance, 27 Wis. 491;
Alderson v. White, 32 Wis.
309. Such a general appearance to contest a judgment on account of
irregularities will, if the grounds therefor are not sustained,
conclude the parties as to any further questioning of the judgment.
A party cannot come into court, challenge its proceedings on
account of irregularities, and, after being overruled, be heard to
say that he never was a party in court or bound by those
proceedings. If he was not in fact a party, and had not been
properly served, he can have the proceedings set aside on the
ground of want of jurisdiction, but he must challenge the
proceedings on that single ground."
The record shows that there was a conflict of testimony in the
district court upon the question whether the signature of E. C.
Sugg & Bro. to the note sued upon was an authorized partnership
act. This was a question of fact simply, determined against the
plaintiffs in error in the district court, and that determination
affirmed by the supreme court of the state. And with its judgment
in that regard we have nothing to do.
If, however, the validity of the Texas statute and the judgment
rendered thereunder was necessarily drawn in question, and must
have been passed on in order to a decision, we find no ground to
question the conclusion reached because of repugnancy to the
Constitution. The notice authorized by article 1230 cannot, of
course, have any binding effect personally on the party served
therewith; but if the suit or proceeding is intended to affect
property in Texas belonging to him, or in which he is interested,
the notice may be very proper to apprise him of it, and give him an
opportunity to look after his interests if he chooses. For this
purpose, it might be to his advantage to receive it. It cannot
legitimately serve any other purpose, and it does not appear to
have been used for any other purpose in this case.
Page 132 U. S. 531
The judgment was not a personal judgment against J. D. Sugg, but
a judgment against E. C. Sugg individually, and against E. C. Sugg
& Bro., treating the partnership as a distinct legal entity. So
far as J. D. Sugg was concerned, it bound the firm assets only, and
could not be proceeded on by execution against his individual
property.
Burnett v. Sullivan, 58 Tex. 535;
Texas
& St. Louis Railroad v. McCaughey, 62 Tex. 271;
Alexander v. Stern, 41 Tex. 193;
Sanger v.
Overmier, 64 Tex. 57.
The position taken by plaintiffs in error is not tenable,
Pennoyer v. Neff, 95 U. S. 714, and
the judgment is
Affirmed.