126 S.W. 948 | Tex. App. | 1910
Appellees, a copartnership of Liverpool, England, instituted this suit against the International Great Northern Railroad Company, and T. J. Freeman, the receiver of said company, and the Galveston, Houston Henderson Railroad Company, to recover the value of 34 bales of cotton, being parts of two shipments, alleged to have been delivered by plaintiffs, through their agents, to the International Great Northern Railroad Company at Italy, Texas, to be shipped by it through the port of Galveston, Texas, to them at Liverpool, and for which two shipments of cotton said first named company executed its two foreign bills of lading to plaintiffs' agent, Edward L. Cox, one of which was for 100 bales and the other for 200 bales; that all of said cotton except 34 bales was delivered to plaintiffs in Liverpool, which 34 bales it was alleged was converted between April and August, 1907, by said two railroad companies at Galveston, Texas. It was further alleged that said two companies were partners in said shipment, agents for each other, and were operating under a joint traffic arrangement; and it was likewise alleged that T. J. Freeman was appointed receiver of said I. G. N. Railroad Company some time in January or February, 1908. *639
Appellant answered, first, by plea of privilege to be sued in Galveston, the county of its residence; also by general and special exceptions, and denied under oath the partnership, or that the two railroad companies were agents for each other with respect to said shipment; and further alleged that none of the cotton described in plaintiff's petition, alleged to have been converted, ever came into the possession of appellant or was in any way handled or controlled by it or any of its agents in its transportation from Italy, Texas, to Galveston, Texas, but that said cotton was, at all times, under the control and management of the International Great Northern Railroad Company, and that appellant was in no way interested in said shipment or responsible therefor.
Thomas J. Freeman, receiver of the International Great Northern Railroad Company, answered by special exception and a plea wherein it was alleged that he was appointed receiver of the property of said company by the Circuit Court of the United States for the Northern District of Texas subsequent to the accrual of the cause of action sued upon, and that plaintiffs had not procured from said court in said cause in which he was appointed receiver, any leave or permit to bring this suit against him as such receiver on the cause of action asserted. And further alleged that plaintiffs' cause of action, if any, did not grow out of any act or transaction of his in carrying on the business connected with the property of said company as its receiver.
Upon trial before the court without a jury appellant's plea of privilege was overruled and judgment was rendered in favor of plaintiffs for $3,038.28, against both railroad companies, and said suit as to the receiver, Thomas J. Freeman, was dismissed with his costs. Appellant alone prosecutes this appeal.
We pretermit any discussion of the questions raised in appellant's first assignment, wherein it urges that the court erred in overruling its plea of privilege to be sued in Galveston County because, in view of the disposition we make of the case, we regard it unnecessary to do so.
It is insisted by appellant in its second assignment that the court erred in holding that the contract between appellant and the I. G. N. Railroad Co., executed on the 19th of November, 1895, as set out in the court's findings of fact, constituted a joint traffic arrangement or agreement between the parties thereto, and rendered appellant jointly liable to appellees for the value of the cotton sued for herein. The contract referred to is voluminous, and we will only insert the substance thereof, as found by the court, which is as follows:
"Section 1. As fixed compensation for the services to be rendered by the Galveston Company and for use of its road and appurtenant properties, as herein provided, the International Company shall pay the Galveston Company $62,000 per annum, $12,000 in equal monthly installments and the balance to be paid on the interest of the first mortgage bonds of the Galveston Company.
"Sec. 2. The International Company shall further pay the actual cost of the Galveston Company for train services in hauling and transporting the separate trains of the International Company under this agreement, including interest at the rate of six percent per annum on the cost of the Galveston Company's engines used in such transportation, also the cost of repairs on such engines made necessary by use in such service.
"Sec. 3. The International Company further agrees to pay to the Galveston Company what shall be known as 'Proportional charge for maintenance and operation of freight terminals at Galveston Houston,' and the sums to be paid under this head by the International Company shall be ascertained and determined in the following manner (which is based on the tonnage handled):
"Sec. 4. The International Company further agrees to pay to the Galveston Company what shall be known as 'proportional charge for maintenance and operation of the Galveston Railroad,' including bridges, side and passing tracks and switches, including taxes, cost of insurance, renewals and repairs. It excepts the expense of operating trains of the Galveston Company not doing any business for the International Company — the amount to be paid determined on the wheelage basis."
Sec. 5. Provides that the Galveston Company shall maintain and *641 operate its railway and appurtenant properties covered by the agreement, including freight terminals and freight houses, fully equal to the standard of maintenance and operation of the first-class railways in the State of Texas.
The above contract was submitted to and approved by the Railroad Commission of Texas.
The findings of fact by the court, supplemented by the evidence as set forth in the statement of facts, wholly failed to show that any of the cotton lost was ever shipped over the Galveston, Houston Henderson Railroad; and it is not affirmatively shown that any of said shipment was carried over said road. The books of the I. G. N. Railroad Co. at Galveston show that all the cotton, except the missing cotton, was received in Galveston by the I. G. N. Railroad Company, and transferred to the steamship company. And, while it might be inferred from the evidence that that part of the cotton so received in Galveston reached there in the cars of the I. G. N. Company by way of the Galveston, Houston Henderson road, still, there is no positive evidence of that fact; nor does the contract require all shipments on the I. G. N. to be carried over its line, and it is possible that this shipment may have reached Galveston on some other road. In fact, there is nothing in the record going to show what became of the thirty-four missing bales after their delivery to the I. G. N. Railroad Company at Italy, Texas. The two bills of lading in this case were executed by the I. G. N. Railroad Company, but no allusion was made in either to the Galveston, Houston Henderson Railroad Company, nor was said shipment routed over the latter road. From aught that appears in the record, we have as much right to assume that the cotton was lost between Italy and Houston on the line of the I. G. N., as we have to say that it was lost between Houston and Galveston, on the line of the Galveston, Houston Henderson Railway.
We are not prepared to agree with counsel for appellees that the contract between the two railway companies, above set out, constitute them a partnership, nor render them jointly liable as the agents of each other so far as this control is concerned, but that the same was more in the nature of a trackage arrangement, by which the I. G. N. obtained the right and privilege of running its cars into Galveston over the road of the Galveston, Houston Henderson Company; and this view is emphasized by the testimony of General Manager Hill with reference to the manner of conducting business between said companies. He testified: "It is a fact that the I. G. N. Company uses the G., H. H. Railroad from Houston to Galveston, and has done *643
so for the last two or three years for the purpose of transporting all the freight and passengers carried by it from interior points in Texas, under the agreement referred to." But he further testified that the three lines mentioned do not do business together, but do use the same facilities under the agreement referred to; that the I. G. N. and the M., K. T. run their own engines and cars over the the G., H. H. Railroad Company's tracks, and the amount paid by each is the percentage of the total cost of maintaining said road as its total wheel miles monthly bears to the total wheel miles. (See in this connection: Houston T. C. R. R. Co. v. McFaddin,
Hence we think that the court erred in rendering judgment against the latter company for the value of the cotton so lost. We therefore sustain this assignment.
Appellees insist, by a cross-assignment duly presented, that the court erred in sustaining the plea in abatement of Thomas J. Freeman, *644 receiver of the International Great Northern Railroad Company, and dismissing said Freeman from the case with costs. It was shown that the cotton was received for shipment by the I. G. N. Company during the month of October, 1906, and it is alleged that it was converted by both of said companies during the year 1907. It appears from the allegations of the pleading, as well as the evidence, that Freeman was appointed receiver of said company in February, 1908, and it is not alleged nor shown that the plaintiffs obtained leave from the Federal Court in which the receivership was pending to prosecute this suit against said receiver. This being true, we think the judgment of the court below dismissing said receiver with his costs was correct. The rule seems to be well settled that at common law a receiver could not be sued without the permission of the court appointing him. (See Alderson on Receivers, p. 711, sec. 519.) But this rule has been changed by statute in some of the States, as well as by an Act of Congress. The third section of the Acts of Congress of March 3, 1887, and August 13, 1888, reads as follows: "That every receiver or manager of any property appointed by any court of the United States, may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which said receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed so far as the same shall be necessary to the ends of justice."
We hold that in order to prosecute a suit against a receiver appointed by a Federal Court without leave of the court, the suit must be predicated upon some action of the receiver or his predecessor in carrying on the business connected with such property; so that it is clear that if the cause of action accrued prior to the appointment of the receiver, then leave of the court must be obtained to prosecute the suit before the action could be maintained; and failure to obtain such leave justifies the court in dismissing the receiver from such proceedings. In Alderson on Receivers, p. 731, it is said, after discussing this statute and the decisions under it, that "The congressional statute under consideration may be said to support the following propositions: A suit may be instituted against a receiver appointed by a Federal Court, and prosecuted to final judgment without the consent of the court, the subject matter of which arose out of some act or transaction of the receiver, his predecessor or the employes and agents of either of them, in the actual operation of the property in his possession and continuation of the business for which such property was used. Second. A suit against a receiver of a Federal Court which has not for its object the vindication of a wrong or the enforcement of a right arising from some act or transaction of the receiver or his predecessor, or the employes and agents of one of them, in the actual operation of the property in his possession and continuation of the business for which such property was used, without the consent of the court, can not be maintained, and according to the rule of the federal judiciary, a judgment rendered in such suit will be void, because of want of jurisdiction."
See also Smith v. St. Louis S. F. Ry. Co.,
The case seems to have been fully developed in the court below. We therefore conclude that the judgment, so far as the same affects the Galveston, Houston Henderson Railroad, should be reversed and here rendered in its favor; but that the judgment against the International Great Northern Railroad Company, as well as the judgment in favor of T. J. Freeman, receiver, be and the same is in all things affirmed, and it is so ordered.
Affirmed in part and reversed and rendered in part.
Writ of error refused.