HOWE et al. v. KEYSTONE PIPE & SUPPLY CO., Limited, et al., 278 S.W. 177

GREENWOOD, J. By motion for rehearing, defendant in error Keystone Pipe & Supply Company offers to remit any lien in its favor enforced by the judgment of the district court, and thereupon prays for a reformation of the judgment heretofore entered so as to award to said defendant in error a personal judgment against J. P. Howe and H. C. Meier and the surety company on their supersedeas bond. Consideration of the district court’s judgment discloses that this cannot be done, without disregard' of substantial rights of plaintiffs in error Howe and Meier.

The district court did not render a mere personal judgment in favor of the Keystone Pipe & Supply Company against Howe and Meier. Instead, its judgment undertakes to marshal all assets of the New-Tex Refining Company and of the New-Tex Pipe line Company, in a considerable amount, and to direct the distribution thereof among secured and unsecured creditors.

It is obvious that Howe and Meier have the valuable right to have the common property of the refining company applied to the payment of that company’s debts, and to have the common property of the pipe line company applied to the payment of that company’s debts. They should be made liable for the deficiency only from their individual estates. Eor, as declared by this court, through Chief Justice Stay-ton, in Wiggins v. Blackshear, 86 Tex. 668, 26 S.

W. 940: “As every partner is liable for the debts of bis firm, and owns its property in common with the other partners, it is his right to have the common property applied to the payment of partnership debts; and all the other partners, without his consent, cannot take this right from him.” In no event does the Keystone Pipe & Supply Company show itself entitled, on the facts disclosed by this record, to collect the full amount of its debt from plaintiffs in error individually or the surety on the supersedeas bond.

It is necessary for the court below to have before it all parties claiming a share in the distribution of the assets of the two companies before it can properly marshal such assets. Interveners Frances Y. Brooks et al. are such claimants. Having entered the only proper judgment on the original disposition of this case, the motion for rehearing is overruled.