1875.1 DE FOREST V. MILLER. 37
Opinion of the court.
fendant, Miller, claimed the one-half as his, Miller's, property,
and then told the jury that the question to be determined
was, "is that portion of the stock of goods claimed
by Miller (that is, one-half) subject to the execution
against Hugo Fox? " and that, "if the goods claimed by
AMiller are the property of Fox, they are subject to the
execution against Hugo Fox, and you should find for the
plaintiffs;" * * "but if the evidence shows that
the goods claimed by Miller are his property, or that
Fox and Miller were partners in business, and owned the
whole stock of goods jointly and in equal proportions, then
the goods claimed by Miller would not be subject to the
execution, and you should find for the defendant." These
extracts contain the material portions of the charge, and
under the issue formed, pleadings, and evidence in the
case. This was error in the charge. It assumed that Miller,
by reason of his partnership interest in the stock of
goods, would be entitled to the whole, when his claim was
only for the half. The jury found for the defendant, that
is, for all that he claimed, the one-half of the goods taken
under execution by the sheriff. He was, by the verdict,
entitled to this and nothing more. The judgment was
therefore erroneous in decreeing that the plaintiffs in execution
take nothing by their suit. Plaintiffs were entitled
to have a decree in their favor, adjudging the one-half admitted
to be the property of Fox liable to the execution.
This error of the court in the charge doubtless grew out of
the decision in the case of Warren v. Wallis, Landes &
Co., 38 Tex., 228. The present case is entirely different.
In that case, as in the case of Converse & Co. v. McKee, 14
Tex., 20, it was alleged and shown, by the solvent partner
claiming the property, that the partner whose supposed
interest was levied on had no interest in the partnership
assets, and that consequently there was nothing to seize
under the executions.
In the case at bar the claimant neither asserted nor
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed October 21, 2014.