Halsell v. McMurphy , 86 Tex. 100 ( 1893 )

Inspection of the record shows clearly that the name "Gabriel L. McMurphy," found in the judgment entered, was simply a clerical mistake. The petition shows the true name, as welt as the further fact that the action was brought against James L. Thompkins and Gilbert L. McMurphy as partners; and in addition to the judgment being entered against the McMurphy who was adefendant, that entry shows that the McMurphy against whom judgment was in fact rendered was only liable with Thompkins as surety on the note sued on, which was, in effect, the position of Gilbert L. McMurphy, for they were shown by the petition to be only endorsers.

We fully concur with the Court of Civil Appeals as to the law governing the case, and in view of the entire record, in the conclusion that it shows that the judgment was in fact rendered against Gilbert L. McMurphy.

There is, however, another view of the case decisive against the claim of any of the plaintiffs.

The land in controversy belonged to the partnership composed of James Thompkins and Gilbert L. McMurphy, insolvent and dissolved at the time the judgment was rendered under which the land was sold.

The petition showed that the action was against them on a partnership liability, and if there had been no judgment binding on Gilbert L. McMurphy, under which execution might issue against property owned solely by him, the judgment rendered authorized the sale of the land, as it was partnership property, and no question is made as to the validity of the judgment against Thompkins. Alexander v. Stern, 41 Tex. 193; Railway v. McCaughey, 62 Tex. 272; Sanger Bros. v. Overmier O'Neil, 64 Tex. 57; Henderson v. Banks,70 Tex. 398; Rev. Stats., arts. 1224, 1346.

If it were believed that the form of the judgment or execution, or any irregularity in them, caused the property to sell at an inadequate price, of which there is no suggestion, then relief might have been granted, if the facts justified it, in a direct proceeding to set aside the sale on that ground; but as there was nothing to render the sale void, title passed by it to the purchaser.

Judgment of the Court of Civil Appeals will be affirmed.

Affirmed.

Delivered October 26, 1893.