Lee v. Wilkins

Citations

• 65 Tex. 295
• 1886 Tex. LEXIS 657

Syllabus

<p>1. Attachment—Partnership effects subject to levy and actual seizure for SEPARATE DEBT OF ONE PARTNER—WHAT INTEREST AFFECTED THEREBY—LEGALITY OF LEVY UNDER ATTACHMENT NOT DEPENDENT ON EXTENT OF DEBTOR’S INTEREST— Case stated—In 1860, Wilkins Bros., a firm composed of W. G. Wilkins and J. A. Wilkins, became indebted to Emerson, Brewster & Co., of New York. Shortly thereafter Wilkins Bros, dissolved, and L., also of New York, became the owner of the claim. Prior to August, 1872, W. G. Wilkins and J. B. Wilkins formed a co-partnership under the firm name of W. G. & J. B. Wilkins, and were conducting a mercantile business in the city of Brenham, Texas, and about that time purchased goods in the city of New York. L., who had been unsuccessful in his efforts to collect his claim, placed it in the hands of an attorney in New York for collection, who, in the absence of L. from that city, finding there some of the goods belonging to W. G. & J. B. Wilkins, brought suit on the claim, in which he alleged that they were the parties indebted to L., and sued out an attachment which was levied upon the goods. The ground for the attachment was the non-residence of the defendants. The attachment proceedings, were instituted August 23, 1872. L. returning to the city a few days after-wards, discovered the mistake made by his attorney in inserting in the petition and process the name of J.B. Wilkins instead of J. A. Wilkins. The mistake was called to the attention of the court in which the action was pending, on September 5, 1872, whereupon the court caused the name of J. A. Wilkins to be substituted, in the several papers, for that of J. B. Wilkins, wherever the latter appeared, and also caused the title of the suit to be amended. Pending the attachment proceedings, a settlement was effected between W. G. & J. B. Wilkins and L., whereby the former paid the latter $600 and gave him their promissory note for $800, in satisfaction of his claim. The goods were released, sent to Texas, a