dissenting.
The following hypothetical illustrates the effect of the majority’s ruling today:
Assume plaintiff files suit against named defendants “ABC Partnership, B, individually and C, individually” (without naming A, individually, as a defendant). Assume also that the petition states that ABC Partnership can be served with process by serving any of its partners, A, B, or C, and that the constable serves A with the citation that is addressed “TO: ABC Partnership.” Assume further that the petition’s concluding prayer seeks judgment against “all defendants, jointly and severally” or against “ABC Partnership, B and C, jointly and severally.” Assume answers are filed on behalf of ABC Partnership, B and C, and that A never appears in the case. According to the majority opinion in the present case, judgment could properly be entered against A, individually, even though A was not named as a defendant. A logical extension of the majority’s opinion is that the plaintiff could take a default judgment against A, individually, nonsuit the other defendants, and have a final judgment against A, even though A was never individually named as a defendant.
I respectfully disagree and dissent. I do not believe a reasonable person in A’s shoes would be put on notice that he is being sued individually when he gets served with a citation addressed “TO: ABC Partnership,” along with a petition that does not name A, individually, as a defendant.
In my opinion, in the present case, the trial court erred when it granted judgment against Fincher individually, when Finch-er was not named individually as a defendant until after the trial was completed.
*515A petition against a partnership should state the names of all the partners in order that judgments may be obtained against them individually. Texaco, Inc. v. Wolfe, 601 S.W.2d 787, 740 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref 'd n.r.e.). Further, a petition should allege the capacity of a defendant sued other than as an individual. Id.; 2 R. McDonald, Texas Civil PRACTICE IN DISTRICT AND COUNTY COURTS § 6.04.2 (rev. 1982).
In the present case, the evidence showed that Yellow Ribbon was a Texas general partnership composed of two partners, Fincher, individually, and Fincher as Trustee for a corporation. The only partner named as a defendant in appellee’s petition was “Fincher, Trustee”.
It is true that the factual allegations in the pleadings state, and the proof showed, that Fincher was a general partner of Yellow Ribbon, that Yellow Ribbon and Finch-er owned the involved apartment complex, and that Fincher made certain representations and agreements. It is also true that all partners are jointly and severally liable for the debts of the partnership, and that citation served on a member of a partnership generally authorizes judgment against the partnership and the partner actually served. Tex.Rev.Civ.Stat.Ann. art. 6132b, §§ 15, 16(1) (Vernon Supp.1991); Tex.Civ. Prac. & Rem.Code Ann. § 17.022 (Vernon 1986). However, we have not been shown, nor can we find, any case holding that a partner, not named in a suit as a defendant, can have a valid judgment entered against him. Fincher was named as a defendant only in his capacity as “Trustee.” A judgment against a trustee in his representative capacity is collectible by execution against the trust property, not against the trustee’s personal assets. Tex.Prop. Code Ann. § 114.084 (Vernon 1984).
I would hold the post trial amendment adding Fincher, individually, as a party defendant, when he did not participate in the trial or file any pleadings in the case individually, did not authorize a judgment against Fincher, individually.
I would sustain point of error one. I would reverse and render a take-nothing judgment as to appellant William R. Finch-er, individually, and affirm the judgment in all other respects.