The first assignment of error is that the court erred in overruling the exceptions of the defendants to the petition and motion of plaintiffs.
One of the grounds of objection to the petition and motion of the plaintiffs was that it was not sworn to, nor was any bond given. It would seem from the weight of authority that a subsequent attaching creditor may intervene in order to have the judgment of a pre*52vious attaching creditor set aside on the ground of fraud — even without giving bond. See Peters Furnishing Co. v. Dickey, and authorities cited, 4 Tex. Law Rev., 303.
Another ground of exception to the petition was the want of any allegation that the firm of Grabenheimer or its members were insolvent. This, in our opinion, is a fatal objection to the proceeding. There were only two grounds presented in the petition for the interference of the court. The first was that the judgments were fraudulently obtained; and the second that the plaintiffs were the partnership creditors of Grabenheimer & Co., while the defendants were the separate creditors of Meyer Grabenheimer. The court found against the fraud — thus disposing of the first part of the case.
As to the second question presented, we have only to say that it was a matter of no consequence whether the plaintiffs were part-' nership or separate creditors unless the supposed partnership was insolvent. White v. Parish, 20 Tex., 693; Story on Partn., sec. 358.
The finding of the court upon the subject of the partnership is not very clear; nor does the evidence clearly establish the existence of a partnership in fact between Meyer Grabenheimer and Gernsbacher. The court seems to find, and we think properly from the evidence, that they should be treated as partners as to third persons — that is, as to persons who traded with them as partners, and who were induced to regard them as such by their representations and course of dealing.
The evidence seems to show that, although Gernsbacher was probably not a member of the firm, yet Grabenheimer held him out to some persons as such, and permitted him to trade with them as such. Mow, as to such persons, Grabenheimer would not be permitted to deny the existence of the firm, and he would be liable to them for any debt created by Gernsbacher in the legitimate business of the firm. Let us illustrate. Suppose that B. is in fact a clerk of A., yet A. permits him to represent himself as a member of the firm of A. & B., and to contract debts with 0. upon the credit of the supposed firm. Mow, as against O., A. cannot dispute the existence of the firm or deny his liability for the debts.
To permit A. to do so would be to practice a fraud upon G., and hence he is estopped. But this estoppel would not affect any one but himself. Let us suppose that D. is an antecedent creditor of A. He is not estopped to deny the partnership unless he has taken some part in the fraud; and as to him 0. would have no preference whatever.
In fact, the supposed preference which partnership creditors are *53said to have over the separate creditors of the partners is derived from the rights of the partners themselves. Each partner is said to have a right to demand that, in case of the solvency of the firm, the partnership property shall be applied to thé partnership debts. And equity subrogates the partnership creditors to these rights of the partners.
Unless, therefore, there is a real partnership, there can be no right of preference to which the partnership creditors can be subrogated. Story on Partn., secs. 357-360.
If Gernsbacher was in fact a clerk, and was receiving a certain portion of the profits in lieu of a salary, then he was not a partner. Cothran v. Marmaduke, 60 Tex., 370.
There are some minor matters which should be noticed. The court gave judgment for the costs incurred in the preceding suits brought by the plaintiffs. These were neither alleged nor proven, and should not have been adjudged against the fund in this case.
The same may be said of the order made in favor of L. & H. Blum.
Our opinion is that the judgment should be reversed and the cause remanded.
Beversed and remanded.
[Opinion adopted April 24, 1885.]