185 S.W.2d 739 | Tex. App. | 1945
The appeal is from an ex parte receivership, involving a 1939 De Soto automobile, upon verified petition of appellee duly filed in district court. The allegations of aforesaid petition, invoking above order, are, in substance: That Ellis went to the business place of appellee, an automobile dealer, negotiated for purchase of the car, agreeing to pay the sum of $1,050 cash; that said defendant Ellis represented to plaintiff's agent that he desired to borrow money from a local bank, with the car as security, in order to realize the full cash consideration due plaintiff, and requested a loan of the vehicle and title papers for bank inspection so that such loan could be later consummated. Plaintiff's agent, believing said statements and representations, accordingly loaned to Ellis the car and title records for the described purpose, but that defendant thereupon gave the car as security to the Hillcrest State Bank; further fraudulently obtaining title to the property by driving same to Collin County, registering it in his name; thereby securing both title and possession by false and fraudulent devices without paying to plaintiff any part of the cash consideration; that defendant was further undertaking to conceal the automobile and place it beyond reach of plaintiff; same having been repossessed while located in the yard of one C. S. Reagan near the town of Irving, Dallas County; alleging no adequate remedy at law, and necessity of the instant proceedings to prevent irreparable loss and damage; otherwise fearing that the subject matter would be entirely lost or destroyed. Prayer of petition was for judgment in sum of $1,050, or in the alternative, for title and possession, etc.
Appellant's points challenge validity of the receiver's appointment as an abuse of *740 discretion on part of the trial court, in absence of specific verified allegations of any fraudulent acts or conduct of defendant justifying the order, or that defendant was unable to respond in damages; insufficient allegations for statutory receivership without notice; the petition not negativing sufficiency of other remedies, such as attachment or injunction; same alleging only conclusions as a basis of the seizure, without notice or hearing.
This appeal is direct from the order of appointment; hence the sworn fact allegations of petitioner are to be treated as true and competent evidence in testing propriety of the relief secured: Friedman Oil Corp. v. Brown, Tex.Civ.App.
As stated by plaintiff, the general rule is that "* * * a receiver should not be appointed without notice to the parties adversely interested unless it should be made to appear that the plaintiff in the suit would suffer some material injury by the delay necessary to give notice." Underwood v. Clark, Tex.Civ.App.
Affirmed.