Gayoso Savings Institution v. Burrow, 37 Tex. 88

Gayoso Savings Institution v. Burrow

37 Tex. 88 | Tex. | 1873

Walker, J.

The plaintiff in error was an incorporated institution of the nature of a savings bank, located at Memphis, Tennessee.

In the month of February, 1866, the defendants in error made a special deposit with the plaintiff of United States 7.30 bonds, of the value of seven thousand dollars, receiving therefor the ordinary certificate of deposit.

The petition avers the failure of the bank, the demand and refusal of the deposit, the insolvency of the individual stockholders as well as the bank.

The defendants in error being citizens of Arkansas, on the 3d day of April, 1868, their attorney, John M. Harrell, made an affidavit to be used in' obtaining a writ of attachment from the District Court of De Witt county, Texas. A bond was prepared on the 6th day of May, 1868. The bond and affidavit were filed on the 29th day, and on the 30th of May, 1868, the writ of attachment issued, and was levied upon twenty-five hundred acres of land in De Witt county, as the property of the defendant, now plaintiff in error. Service was made by publication, both parties being non-residents of the State.

On the 29th of September, 1869, Samuel Mosby intervened in the action, averring in his petition of intervention that the defendant, becoming insolvent, ceased to do business, closing its doors, and had forfeited its corporate franchise and gone into liquidation; that the Court of Chancery sitting at Memphis, had taken control of the assets, and appointed him, Mosby, a receiver, with full power and authority to settle and adjust the *90affairs of the defendant; that the decree of the court ordered all persons having property in possession belonging to the defen dan t to convey and turn over the same to him, the receiver. It was further alleged, and appears from the record, that at the time the Chancery Court of Tennessee made its decree, the title to the twenty-five hundred acres of land in De Witt county was in E. M. Avery, the late cashier of the bank, and that the said Avery, complying with the decree of the court, had, on the 7th day of April, 1868, conveyed to the receiver the fee in the land, in trust for the use of the general creditors of the bank.

For some reason which we are unable to discover, the court afterwards ruled out the plea in intervention, and revoked the authority given the receiver to defend the action. This, in our opinion, was error. The property attached had passed to the receiver; it was no longer the property of the plaintiff in error, and the levy of the attachment upon it was void.

The attachment was afterwards dismissed on motion to quash for the informality and insufficiency of the bond. When this was done the suit should have abated. The court could only have jurisdiction by virtue of the proceeding in rem.

There are other errors unnecessary to notice in this record. The judgment of the District Court is reversed, and the cause dismissed.

Reversed and dismissed.