On Appellee's Motion for Rehearing. The nature of this case is sufficiently stated in the original opinion prepared by Mr. Justice RICE, when the judgment of the trial court was affirmed, and in his subsequent opinion, prepared when appellants' motion for rehearing was granted, and the judgment referred to reversed, and the cause remanded, though we may make *Page 619 some addition thereto in the course of this opinion. After our last decision was made, and in due time, counsel for appellee, First State Bank Trust Company, presented a motion for rehearing, accompanied by an elaborate and able argument, assailing the grounds upon which this court based its judgment of reversal; and while authorities cited and argument made have caused us to doubt the correctness of the reasons given for reversing the case, still we are of opinion that, in so far as the appellants are concerned, the judgment of reversal should not be set aside, though we concede that the case should not have been reversed as to judgments rendered against parties who have not appealed, except as to judgment against O. D. Mann.
The only parties who have appealed are William Connolly Co. and O. D. Mann Sons; and upon further consideration we have reached the conclusion that as to them the trial court committed error in not setting aside the judgment by default rendered against them and O. D. Mann, for the reason that their amended motion, asking to have that judgment set aside, set up a meritorious defense, and disclosed a sufficient excuse for not having filed their answer before the default docket was called, and that this court fell into error when it ruled otherwise in the original opinion filed herein. In addition to the facts stated in the opinion referred to, we copy as follows from the answer filed in the court below by appellants on the same day that the judgment by default was rendered:
"Further answering in this behalf, these defendants would show to the court that, if they did purchase any of the cotton on which plaintiff held a valid lien or mortgage, they here charge that the money was paid by them, in so purchasing from R. F. Miller or L. E. Miller, to the said R. F. Miller, and that the said R. F. Miller, after receiving said money, paid the same over to the plaintiff in partial satisfaction of the demands herein sued upon by the plaintiff. Wherefore, in the event of such payment, plaintiff should not be now permitted to recover of and from these defendants the value of any cotton thus converted after the plaintiff has been paid the full market value of the same by the defendant R. F. Miller. In this connection these defendants charge that the defendant R. F. Miller paid over to the plaintiff the market value of said cotton, less the cost of picking same, and that the cost of picking the same constituted a claim against said cotton superior to the mortgage lien of plaintiff thereon."
In appellants' amended motion to vacate the judgment by default they alleged, among other things:
"That the order granting judgment by default against these defendants must have been entered against them but a few minutes before their arrival and appearance and tender of their pleadings therein. That upon their arrival these defendants tendered pleadings of the following nature: (a) A plea to the venue, showing that the plaintiff had no legal right to compel said defendants to appear and defend this cause in Coleman county, Tex.; (b) a plea of misjoinder of parties defendant and cause of action; (c) a general exception to said pleadings because of misjoinder of parties defendant; and (d) a plea to the merits of said cause of action, praying in the alternative that, in the event that their special pleas should be overruled, said defendants should be heard upon their answer showing a meritorious defense to the cause of action. That all of said pleas are here referred to and made a part hereof, for the purpose of being considered by the court in connection with this motion to vacate said judgment by default."
We think it was proper for the court below to consider the answer filed by appellants in connection with the motion to vacate the judgment by default, and that, when so considered, the motion disclosed a meritorious defense; and we are also of opinion that the diligence shown by the motion was as much, and perhaps more, than that shown in the recent case of International Travelers' Ass'n v. G. L. Peterson, 183 S.W. 1196, decided by this court. In granting a rehearing in that case, we cited and quoted from `Dowell v. Winters, 20 Tex. 794, in which case there was no more diligence than in this or the Peterson Case. The Peterson Case is also authority upon the question of verification of the motion to vacate and the answer referred to in the motion, as there is no substantial difference between the two cases in that respect.
So, if it be conceded, as contended by counsel for the bank, that the filing of the motion to vacate the default judgment upon other grounds than the question of notice or service of citation cured whatever defect may have existed in that regard, still we are of opinion, for the reasons just stated, that appellants are entitled to a reversal of the judgment and to a trial upon the merits; and this conclusion is reached without reference to the so-called statement of facts, which counsel for appellee contend should not be considered. We agree with appellee's counsel that this court fell into error when it held that the amount sued for was not within the jurisdiction of the county court; but, as stated above, we rest our reversal of the case upon our present conclusion that the motion to vacate the judgment disclosed a meritorious defense, and a sufficient excuse for appellants not having filed their answer presenting such defense before the default docket was called.
Except as to the judgment against O. D. Mann, we also agree with counsel for appellee that the judgment in its favor against parties who have not appealed should be affirmed, and that the judgment of this court reversing the case as to them is erroneous. As to O. D. Mann we hold that the judgment should be reversed for the reason that he was not sued otherwise than as a member of the firm of O. D. Mann Sons, and we suppose that the court below rendered judgment against him individually because of the fact that the citation which was issued against the firm of O. D. Mann *Page 620 Sons was served upon him as a member of the firm. It is provided by statute that a judgment against a partnership is collectible out of the partnership property, and out of the individual property of the members of the firm who have been served with citation; and no doubt it was upon this theory that the judgment was rendered against O. D. Mann individually. In fact, he was only sued as a member of the firm, and therefore could not be held liable otherwise; and it necessarily follows that, if the appellee is not entitled to a judgment against the firm, it is not entitled to any judgment against O. D. Mann individually. In other words, the cause of action is one and the same against O. D. Mann and the firm of O. D. Mann Sons, and therefore the statute, which prescribes that only one final judgment shall be rendered, has application, and for that reason a reversal as to one operates as a reversal as to all, though only one may have appealed. But, as to the judgments rendered in favor of the bank against the other defendants, that statute does not apply, because those judgments were based upon separate and distinct causes of action, in which no recovery was sought or had against O. D. Mann or O. D. Mann Sons. Danner v. Walker-Smith Co., 154 S.W. 295.
So our conclusion is that, in so far as appellee's motion for rehearing asks to have our former judgment reversing the case as between appellee and appellants Wm. Connolly Co. and O. D. Mann Sons and O. D. Mann, individually, set aside it should be overruled, but that the remainder of this court's judgment of reversal should be set aside, and judgment of the court below affirmed; and it is so ordered.
Motion overruled in part, and in part granted.