*1
CO. CLINT
ICE BREWING
&
negligence
of the
only questions
pellant producing
lant,
appellee
under the
extent of
timony
cause,
character
pellee’s good reputation,
ness
ment,
demonstrations
the
plaintiff
the character
tice
character,
pra,
jury
to an
ing
arm),
cited
Tex.
Faroux,
character;
matter
by
to whether or
ten
tack
as
intended to
man,
trial
dence
witness for
above
ant called out on cross-examination
showed
tiff and
fifth
medicines and
testimony of an
alleged $150 as the amount recoverable for
recovery
sician, and the court should have limited the
amount
shows the value of
charge
the services of one of the
proximates
alleged
services
erence to
with the certain
charge
(of
well
evidence
receipt
physicians
Brown,
tried
physician,
upon
Third.
may
including
upon
paragraph
62 S. W.
and then
clearly
stated,
impeachment
unsatisfactory
train,
brought
to the court
of the court limited the
McReynolds,
of the numerous
as for
appellant.
125 S. W.
treated
claimed
matter
25 S. W.
as to
interrogations
same.
the character of
be sustained
(that is,
upon
rules
that he claimed to have been
but must in
such an attack
impeach
erred
truth.
aliunde as
Appellant
two
we
the difference is
distinguishable
malingering,
honesty,
permitting
passing
while
closely
justify the
proceeded
the doctor’s
complaint
810. In the
physicians’ services,
of its
clearly
out
clearly
him,
the facts
the witness
irrelevant
of the main
testimony
respect
hold
A consideration
appellee’s
physicians
expenditure
924; Railway
did not submit a
Railway
* * *
the services
as to who dressed his
of the character
his character
upon
physician.
defendant made
character,
the submission attorney
is no
Houston
that when
in amount to
reference
plaintiff
negligence
upon
and the evidence was
plea
cross-examination,
raises the
eliminated
contends that
and under
witnesses
it,
petition.
there
that the
either
testimony
character,
plaintiff
as to the value of
complaint)
evidence of
to the issues
which we
make
injuries
Raney Case, su
testimony
he said: “Where
Co. v.
upon
decided
particular point
attended
from the
Under the rule
physicians,
testimony only
stand,
charge
for medicines
Electric Co.v.
impeached by
with
did not write
remained
ref
Co.v. Weide
but with value
contributory
insignificant,
attorney
of one
jury
the defend
an issue as
issue
Raney,
plaintiff’s
testimony
from the
for truth
impeach
There is
this evi
physical
as to
some
coupled measure
amount
truth.”
special
an at
which,
appel the matter
think,
plain
cases
writ
good
phy
$150
Jus
wit
this
tes
ap-
be
tofore
paragraph
as
it
The fifth
permitted
and
plained
the
exceed the amount claimed
the fifth
find for
taining
that
read
damages
stances
affirmance
jury
reference
on
ment of
court does not
the
is
agents,
addressed to
main
submission was
ant;
company, in
assumes that
sailed evidence
whatever
and
original opinion, upon
third
ry,
“bump” having
in view the
HOUSTON ICE
order
ed to
C.
manding
property
as, or
(Court
order of
attorneys,
.The motion
[4]
We overrule
tonio. June
Injunction—Restbaining
[5]
complain
required
Appeal
rehearing,
and the
county,
jury in
we
opinion,
On an
the two
together.
any
is instructed
Appellant
Appellant,
been overlooked.”
charge
assignment unprofitable
directing
a certain
any portion thereof, pending
given you, you
plaintiff
think that the sixth
of,
assailed
error,
and elements of
of the Ice
On
to the fifth
paragraph,
limitation
paragraph
* *
of the
hearing,
Civil
evidence,”
we
and Ebeob
and his authorized
under all
as to
error,
which he instructs
Motion
it occurred to us that
different measure
recovery
evidence
charges
employ
issue
says:
the third
damages
the clerk
regarded
employés,
affirmance
corporation
allude to
*
also asserts that
& BREWING
Appeals
overruled.
upon
under the
main
discussing
upon
management
assignments
1913. & Gin
On Motion
as seem to
the written
June
record
refrain from
trial court in which the
proven,
submits
“From
paragraph
immediately succeeding
charge
the issue of
skillful and
a matter not
charge
effect that a
should and
mentioning
will allow
for an
the'
such an inferential
damage recoverable,
Rehearing.
and to the sheriff of
28, 1913.)
of Texas. San
Company IT.,
court
paragraph of
of the ease.
an immaterial one
jury,
issue a writ direct-
100*)—Tempobaby
discussion
instructions
support
in the
double
and to its
ground
the fact that
”upon
paragraph
Order.
misleading and
of the court to-
specifically
you
of the court
and unnecessa
the trial court.
assignment
CO. CLINT.
assignment
and order the
says,
deputies,
argument
of its
third
them not to-
neither does-
and circum
explanation
negligence,
petition.
selling
the further
competent
the sixth
him
would be-
damages.
damages-
it. The
pleaded,
unusual
“If
railway
defend
assign
time
officers,
trains,,
unas
here
right
Re-
com
con
com-
Tex-
you-
the-
An-
the-
up
the-
on-
topic
Dig. Key-No.
Rep’r
other cases
same
*For
and section
Indexes
in Dec.
Am.
Series &
NUMBER
*2
159 SOUTHWESTERN REPORTER
n whichthe
Corporations
expire,
restraining
(§
566*)
Insolvency—Re
6.
order should
—Injunction.
temporary injunction,
appeal
and an
ceivers— Sale of Assets —
perfected
junior
properly
therefrom as such.
Where a
lien holder obtained
appointment
an
of a
receiver of the assets
cases,
Appeal
[Ed.
other
Note.—Eor
see
only
corporation,
insolvent
suffi-
which were
Error,
Dig.
670-680;
Dig.
Cent.
Dec.
§§
§ 100.*]
pay
judgment
lien,
cient to
first
against
injunction
recovered
an
properly
restraining
issued
the sale
—
Corporations
Insolvency
(§ 566*)
2.
—Re
corporation’s
execution;
assets under an
op
Mortgage Liens
ceivers — Sale
Assets —
but,
applied
having
lien
senior
holder
—Displacement—Statutes.
property
proceedings,
sale of the
in such
2185, provides
Rev. Civ. St.
art.
properly
sale,
court could
order a
either
moneys coming
of receivers
into the hands
sheriff,
such mode as
like-
would be
purposes
shall
six
or-
different
ly
expense.
to result in the least
der, beginning
payment
of court costs
with
Corpora
cases,
[Ed. Note.'—For other
see
ending
judgments
a receiver. The
obtained before the tions,
Dig.
Dig.
2283-2286;
Cent.
§§
Dec.
§
claim
566.*]
being
over the
liens
judgments
against
Corporations
(§ 566*)—
rendered
the receiver for 7.
Receivers —Con
arising during
receivership,
costs of action
which
tinuance— Sale of Assets — Distribution.
corpo-
article 2138 declares shall be
Where the assets of an insolvent
lien to a
lien. Article
pay
subd.
ration were insufficient to
more than
appointment of
authorizes the
appointed
receiver when
mortgage,
first
but a receiver was
mortgagee
a
sell
seeks to foreclose his
junior
holder,
at
the re-
instance
mortgaged property.
'Held,
ceivership
that such
prop-
continue,
should not
but the
merely declaratory
sections
erty
of the rules
proceeds applied
should be sold and the
previously existing for
distribution of as-
payment
first to the
the costs of
insolvent,
pursuant
sets
receivership;
an
collected
to a
instituted
the senior lien
to recov-
holder
be-
referred to
mortgage,
er his debt and
his
foreclose
then to
ing
generally,
liens
but the mort-
principal
interest of
gage lien of the creditor at whose instance the
debt,
remainder,
appointed,
receiver was
ceiver
re- paid
where a
expended
to the receiver to be
as directed
mortgaged
corpora-
property
by the court.
appointed
tion
at
the instance of the hold-
cases,
Corpora
[Ed. Note.—For other
see
junior mortgage
er of t'he
to tions,
Dig.
Dig.
2283-2286;
Cent.
§§
§
Dec.
mortgagee
party,
which the first
was not a
and 566.*]
proceedings
participate,
in which
he did not
(§ 182*) Bond—Duty
Receivers
to Give.
court had no
to so conduct the re-
—
pro-
Under
ceivership
Rev.
Civ.
art.
St.
to consume
viding
injunc-
prejudice
nor
mortgagee,
before the
of an
issuance
given by
party apply-
tion a bond shall be
he
be made liable
ing
the
same, except
where the state is
or the
complainant,
though
prejudice
an officer
used to
the same to the
security.
an
entitled to
to restrain the
sale of
custodia
cases,
Corporations,
[Ed. Note.—For other
see
legis
depositing
without
bond.
Dig.
Dig.
2283-2286;
§§
§
Cent.
566.*].
Dec.
Receivers,
cases,
[Ed. Note.—For other
see
Dig.
Dig.
§
Cent.
§ 182.*]
Dec.
Corporations
(§ 553*)
Insolvency—Re
—
ceivership.
Rehearing.
On Motion for
junior mortgage
the holder
Since
of a
on 9.Corporations
Insolvency
(§ 566*)—
—Ad
corporation
insolvent
assets
had no
—
—
ministration
of Assets
Receivers
Re
property except
surplus
interest in the
ceiver’s Certificates.
remaining
lien,
after .satisfaction of the first
corpora-
Where a receiver
anof
insolvent
proceeding
the court should not
entertain
at
tion was
instance of a
corporation’s assets,
his instance to have the
holder,
and was authorized to borrow mon-
satisfy
which were insufficient to
first
ey
certificates,
and issue receiver’s
the holders
through
administered
the effect
pri-
certificates
such
lien
were not entitled to merely
necessarily
of which would
be to
sacri-
corporation’s
assets
fice the
the first lien
holder.
corporation’s proper-
a
ty,
cases,
Corpora
[Ed. Note.—For other
see
who was not a
to the
shown
tions,
Dig.
Dig.
2201-2216;
§§
§
Cent.
Dec.
proceedings, and was not
had
had
553.*]
any knowledge
thereof until the
taken
receiver.
Judg —
(§
174*)
Insolvency
4.Receivers
cases,
Corpora
—
[Ed. Note.—For other
see
Satisfaction—Injunction.
Dig.
ment —
tions,
566.*]
2283-2286;
Digt
Cent.
§§
Dec.
§
proceedings
by a
Where
were instituted
junior lien holder to administer the
assets
10.Appeal
(§ 835*) Rehearing
and Error
—
corporation through
an insolvent
a receiver- —Review—Matters
of Fact.
ship,
Civ.
other creditors were authorized
Rev.
appellate
An
court cannot consider mat-
receiyer,
art.
St.
to sue the
fact,
ters
recited
the motion
rehear-
appointing him,
leave
to ing,
the record.
found
satisfy their claims.
cases,
Appeal
[Ed. Note.—For other
see
cases,
[Ed. Note.—For
Dig.
Error,
3241-3243;
Dig.
see
Cent.
§§
Receivers.
§ 835.*]
Dec.
Dig.
Cent.
333-843;
Dig.
Dec.
§ 174.*]
Appeal
Court,
from District
Brownsville
187*)
Insolvency—Claims
5.Receivers
—
County;
Hopkins, Judge.
W. B.
—Execution.
A
reoovered
a receiver Action between the Houston Ice & Brew-
corporation
of an insolvent
cannot be enforced ing Company
Clint,
and W. B.
as receiver.
corporation’s
seizure of the
assets under
granting
temporary
From
order
an execution.
junction,
restraining the receiver from sell-
cases,
Receivers,
[Ed. Note.—For other
ing any
Dig.
Dig.
&
Cent.
Dec.
the Ice Gin
§ 187.*]
i
377%
topic
Dig. Key-No.
*For
Rep’r
other oasessee same
and section NUMBERin Deo.
Am.
Series &
Indexes
ICE
CLINT
& BREWING CO. v.
granted,”
of
court,
junction
constituted
simple,
peal
ton,
New
ing,
gen,
James B.
pellee.
pany,
ordered
category
pears
secured
temporary injunction,
frame ice
ized
20-ton
Murray
ris
of
Harlingen,
enjoined
* * *
chinery complete,
pired
plications
containing
versed.
ceiver of the Ice & Gin
of
any property
Mexico
belonging
while not denominated
to
denground
certain
W. 350.
in
ed therefrom.
counsel
sale of
Cameron
employes,
sale
language:
Cameron
cussed
court.” No time was mentioned at
the
junction.
Harlingen,
* * *
Baker,
A bill
PLY,
[1] In the
Harlingen,
them
county,
support
appellee,
opinion
issued
for
a
which
agreed
York,
restraining
deputies, commanding
intents
ice
frame
therefore
days,
Houston lee
Railway Company,
gin,
C.
those times.
appellant.
it is recited
collect
Botts,
was one
to refrain and desist
county against
pending
certain
In that case
county,
Wells,
which
plant building,
to the St.
a second
machine
and to C.
the facts
filed suit
Brewing Company
It
owned
exceptions
Cameron
out
fuel oil
“But the
J. This is an
Tex.,
both
restraining
to as
directed
order
who had been
Tex.,
temporary
of the Ice Gin
cold
remanded,
injunctions
Charles
does not come
Parker
it,
of the
appeal
a debt
approved
both
opinion
overruled.
order should
parties,
Tex.,
situated
boiler’,
the further
the same
purposes
storage
until further
motion to dismiss
of Cole v.
and
enjoined
pertinent
I-Iarbert
county,
officers,
to issue writ directed
tank,
statement
of
clerk
The order in this
&
Louis,
restraining
issued
T.
any
district court of
and those cases cited
T.
&
Company
hearing
orders
Brownsville,
found
engine,
apparatus,
Brewing Company
Brown,
under
a frame
Garwood,
$5,000,
on a tract of
Ryan,
house,
properly
followed
his
consisting
portion
one three-stand
injunction,
of
in the town
them and each
Ice & Gin Com
district court
appeal
Tex.
at the instance
Davenport
a
should
attorneys,
Brownsville
to this
temporary
court “was
appeals.
Forto,
this
set
which it
described.
instructions.
duly
from
within that
and
expire,
of facts
prevent
of
trial
which was
the record
one
sheriff
orders ex-
gin
down
citizen of
pure
The
order
of
Harling-
court
one
gin
from a
perfect-
thereof
author-
appeal,
not be
for
for
selling
Hous-
build-
judge
Frick
aof
Har-
it is
land
case
sale
this
ma-
and
dis-
Re-
un- erating expenses,
ap-
ap- moneys
re-
in
of
of
of
of
S.
&
time to the
plaintiff.” Appellee
pointment
incurred other debts
sale
proceeding.
Appellant
the defendant.
pay expenses.
bear
sued at least two for
issue certificates
from time to time. No limit was
It
valid
authorized the
the
gage
on
pellant,
order of
which was
into the hands
judgments
was
that
pointed
come,
existence
and foreclosed
described,
mortgage
lien on the
property
liens;
ters
plied
gage liens,
ceiver, and no mention is made therein
causes
ship
final
court
these
disposition
tute
superior
beginning
county,
will be noted
the article
pendency
costs,
sent
“The
erated claims
It is the contention of
is not
November
Income was insufficient to meet
ending
not
he
of
complained
judgment
to six different
mortgage
issuance,
By
it is
issues
has
and all of
of course was
of action
could not
and took
per
no sale could be made
being operated by
being
issued,
article
on which
any
of
controverted
sued
and asked for and obtained
lien.”
lien
rendered
provided
all other
over
earnings
“shall be a lien
w.ith
court
the district court of Cameron
mortgage
cent,
are
but must
a
cited
The facts show that
come into the
jurisdiction
18, 1912,
alleged
that no
and can refer to that
are those
its
debt
lien” is not
for
and
which was restrained
them
arising during
herein
claims that are
possession
judgments
the district
interest.
mortgage,
Article
and,
granting
the receiver shall
its debt Harris
for
denominations
a receiver.
that all
liens,
court
them.
should
$1,000
purposes
hands of
was
R. S.
in favor of
preference
and
any
mortgage
property.
without notice
fully
to borrow
*3
$12,100
accruing
certificates were to
insufficient,
it so that it would
appointed receiver
given preference
appellee
“prior
and that the
there
equitable lien
each,
hands
some
The receiver is-
receivership.
of the
and an
the receiver
obtained before
moneys coming
considered and
court,
a
admitted the
receivership;
the receiver
and
adjusted
matter. All
and besides
court costs
old number
except
The enum
during
The court
under the
given any
particular
appellant,
money,
mortgage
put upon
that,
mortgage
property.
of
all mort
and this
point
order of
a mort-
and
county
consti-
except
no in-
estate
$1,000
had a
order,
being
mat-
con-
the
ap-
ap-
op-
of
of
.
159 SOUTHWESTERN REPORTER
Schall,
2 of
Fosdick
subdivision
99 U.
lien
article
ment of
mentioned
alone
appoint-
chancery is
Ed. 339: “When
wbicb authorizes
Lt.
railway mortgagees
appoint
seeks to
a re
asked
a receiver
pending proceed
railway property,
and sell the
ceiver
foreclose
property.
ings
foreclosure,
exer
recovered
during
arising
judicial
may,
discretion,
as-
for a cause
the cise of a sound
the receiver
receivership
receivership
mortgagee’s
order,,
issuing
arose out
condition of
pay
ap- impose
proceedings; he invoked the
reference to the
such terms
pointment
during
and he must
the receiver
ment from
ship
income
sup
penalty,
outstanding
labor,
hut
sanc-
the statute nowhere
debts for
permanent improvement
plies, equipment,
a first
tions the doctrine that
can be set aside
was
consent
*4
* * *
* * *
debts,
circumstances,
may,
for
who
a receiver’s
as
under the
knowledge
appointed
appear
or
the
In the-
to be reasonable.”
mortgage
of
lien holder.
Binz
corpus
the-
it was not contended that
Case
although
used,
the confisca-
The statute nowhere authorizes
be
estate
pay
by
expenses
pay
lien,
tion of
given
to
of
certificates
a
off the
covered
by
by
him,
question
operating
receivership,
a
for debts
created
the
the
but
by
priority
payment,
right
and
court can
its orders or decrees
of
was
of
as
mortgage
by
lien,
party
earnings
make a first
held
out
under
of the road while
the
receivership,
has
and
who
not invoked a
claims
the control
court. While the
manner,
operating
not a
to it in
second to in
ex-
Binz Case were not for
performed just
in
penses,
the
claims enumerated
the statute. Such
before
labor
utterly
plac-
receivership
granted,
construction of the statute would be
was
rights
operating
holders,
footing
destructive of the
and
gage
first
ed
on the
them
same
put
mercy
explaining
Case,
expenses, and,
them the
second mort-
the Binz
holders,
might
Briquette Co.,
Supreme
Court,
who
invoke the aid
v.
Sullivan
court in the
aof
receiver. 94 Tex.
63 W.
held: “In that
corpus
might
equity
The whole
of the estate
court of
case this court held that a
unnecessary expenses,
might
earnings
consumed in
apply
railroad,
and the
while
holder,
payment
careful lien
tering
receiver,
who “had laid the flat-
in
of
reasonable
hands of a
improvements
unction to his soul” that the laws of
made within
claims
protect
against
his state would
his lien
all
time
was
before the receiver
absolutely
claims,
destroyed,
preference
would find it
pointed, in
which
the bond
road,
and his
upon
debt forever lost.
If the
was
receiver’s
but it
held a first lien
not asserted
expenses
superior
appropri-
to a first mort-
that
claims could
gage
lien,
preference
corpus
property.”
would have a
over ate the
deprived
a vendor’s
and the vendor be
case
Bank
of Farmers’ National
v.
pay
of
tion he
land
Railway
Co.,
whose crea- Waco Electric
36 S. W.
responsible.
Appeals
in no
wise
If there the
of Civil
Dis-
Court
of the Third
by
action,
should be
trict,
stating
concert
which
de-
after
certain line of
mortgagee
acquiescence
permitted
corpus
had a receiver
estate
cisions
others,
engaged
preference
the
directly
expenses
given
all who
used
indirectly
obtaining
mortgage holders,
the re- over the
at whose instance
might
ceivership
respects
receivership
some
granted,
see the the
held: “A court
security impaired,
value of
administering
rights
litigants
but cer-
ac-
tainly not one
principles
equity
who
holds
first lien on the cord
law
appointed,
right, simply
receiver is
has
its
no inherent
virtue of
part
receivership
judicial
pro-
displace
takes
mortgage
authority, to
valid
ceedings
absolutely ignorant
upon
and
ease of
of them.
and'
liens
that are fixed
McIlhenny Binz,
subject
In the
require
liens,
v.
80 Tex. which
App. 705, it
postponed
Am. St.
is that such liens shall be
to claims
“Though
said:
the doctrine is
recent which
not in
were
existence at the time
origin,
try
has
become settled law in
created,
this coun
liens
are not bas-
that in
final
provision
distribution of the assets ed
some
the
the
contract or
corporation,
gives
right
insolvent railroad
which law which
them
over
placed
the hands of a
liens.”
there are
which,
claims
certain
the fund
In the case of Ellis Water
circumstances,
certain
109,
preferred
under
are en
23 W.
statute
Texas
priority
titled
over the debts
claims in
is con-
corporation
by mortgage upon
preference
secured
strued such claims
over
property.”
sup
prior mortgagees
one,
every
The authorities cited .to
claims
port
proposition
language
unguarded
are decisions
is so
broad
Supreme
States,
Court
the United
and as to
cover
estate as
every
panies,
ships
mortgagees,
one of them
to railroad com
whether
However,
cases which the receiver- the
or not.
that ease
mortgagees,
had been
obtained
one which the
had
and the
on the income tervention made himself a
re-
Supreme
ceivership,
As said
alone.
Court
and the
are
authorities cited
ICE &
CO. CLINT
BREWING-
necessity
procured
mortgagees
concerned,
had
lant was
there was no
those
receivership.
receivership,
extends fori a
in rail-
also
and it is admitted in
the
the
extraordinary powers
the receiver
exercised
defendant
ship proceedings
receiverships
insolvent,
cases in
to all other
road
appointed.
receiver can
applicant'
opinion
Texas stat
We
mortgaged property
probably
merely declaratory
rules as
“is
insuffi
ute is
long
discharge
for a
cient to
the said
debt.”
which have been
receivers
practical
England
America,
It was a
mortgagee1
second
admission that the
time both in
upon property
estate,
passing
should,
re-
no interest in
we
anticipate
governed
any payment
ceiverships,
well-established could not
on his debt
rules,
find from them that
from the administration of
estate.
we
carefully
facts set out in
show
lien holders
the statement of facts
of first
holders,
granted
guarded
that
ber
or inferior lien
on Novem
from second
proper
controversy
18, 1912, that
them to cast
denied
practical
ty
ly
time,
has been idle
hands of
and could
into the
since
operated
operating expenses,
hold
consume the
already
hand,
an ex on
incurred
the other
the receiver had
er
costs and
expended $2,000
travagant
plant,
In section
incur
reckless receiver.
and had
compensation
*5
p.
Receivers,
553,
604,
at
on
it is said: red for
and that of
Beach
torneys
aggregating
general
$1,600,
will not be
of
receiver
the sum
“The
appointed
rule
a
already
$3,600,
of
sum of
in favor
one incumbrancer
indebtedness
incurred.
rights
way
prior
of At the same rate it is
whole
a
as to affect the
clear that the
such
property
applies
equitable
another,
others,
in-
to
be consum
or
would soon
ed,
with
mortgage
creditors,
as to the
left
as well
first
lien holder
cumbrancers and
ap
mortgagees
A court will
no
-case of
law.
whatever.
equi
point
property
this,
In a
similar to
a
favor of
case
the credi
receiver
wherein
legal
creditors, although
property
creditor tors obtained a
a
on
not
table
might
against
mortgage thereon,
it.
execution
The
more than
obtain
value
Supreme
pointment
always
prejudice
Georgia
made without
Court
held
prior
rights; and,
holders,
all the
to
where
to
vested
were not
equitable liens,
charge
proceedings,
a refer
incumbrancers have
not
expenses
determine
be directed
to
incurred
the re
ence
able
legal
priorities;
they
533,
Edwards,
be re
ceiver. Lewis v.
S.
such
to
92 Ga.
17
approving
E.
mitted to a court of law.”
920. After
in that
the deceison
by junior
Georgia
case,
edge,
in Bradford v. Cool
obtained
This
prior
753,
making
579,
mortgagee,
mort
103 Ga.
S.
“If
30
E.
held:
apply
just
principle
gagee
party,
we
and of course without
this
to the
mortgagee.
case,
not
it
It is an action
this
that so
must
held
notice to such
except
justified
statute,
much of the funds in
re
authorized
the hands of the
or
the ceiver realized from the
which authorizes
of the mort
under
appointment
sale
subdivision
gaged property
cases
“in all other
as was
to
off
ap
ap
the amount due on the
cannot be
where receivers
heretofore
equity.”
pointed
pointment
the costs of
and ex
the court of
diminished
penses
governed
any proportion
must
or
of the. receiver
equity
thereof,
courts
that so much of
costs
rules
such
established
general
mortgagees.
plicable
of those
as could not
to
One
met
mortgagee
arising
“when
fund
from the
rules
the first
sale of the
possession
equity
property,
on
taken
the debtor in excess
due
amount
may properly
mortgage,
by mortgage
of subse the
or not
interfere
behalf
covered
quent mortgagees
equitable
lien,
properly
against
or
incumbranc-
should
have been taxed
may appoint
plaintiffs.
creditors,
re
to the
As
creditor
ers and
preju
necessity
protection,
but without
ceiver
no
mortgagee.” receivership;
preservation
rights
and,
dice to the
of her
High
rule,
required
Receivers,
law,
No
consistent
lien as
she must be treated
justice
superior right
having
appropria
equity,
with
can be formulated as
to an
proceeds arising
the rule tion of the
that will contravene the terms of
from the sale
trample
deny
the
the
der
stated. To
is to
to the full extent
thereon;
upon,
absolutely destroy, property
would,
amount due
the facts
un
and often
and it
they
rights.
inequitable
appear,
as
In
alleged
charge her with
or
it was not
ex
that the
penses
impair
doing
anything
this case.” The facts in the Geor
gia
conspiring
quite
case were
value
the
The
or was
similar to those
mortgagor
subsequent
to defeat
creditors. case.
Attrill,
Y.
case of Raht v.
106 N.
first
subsisting,
was admitted
be valid
Rep.
13 N. E.
Am.
a court
appel
operate
concern,
proceedings.
far
.a
So
an insolvent
as
159 SOUTHWESTERN REPORTER
powers
cer-
of receiver’s
issue
of the court
relation
the result
amounting
$400,000,
and a thereto.
tificates
to about
Article
Falfur
$86,000;
Spielhagen,
there be- rias Im. Co.
sale of
ing
127 W.
debts
When we consult
those
money
large
find,
indicated,
obtained on the
we
A
certificates was used
erty,
gage
amount of the
rules
as
hereinbefore
preferred
prop-
improving the
such
will not have a lien
claims
person
a mort- the
was held that
lien of
but it
over whose estate
superior
attached,
appointed,
to the land on which
receiver has been
or
equal
execution,
prior mortgagee
at the time of its
that of a
existed
who was
changed by
improvements,
receivership proceedings.
and that the not a
money, labor,
highest principles
ma-
claims of creditors for
terial used
legal
rule is
founded
improvements acquired
morality
justice,
and is
natural
protection
equitable,
outcome
laws
of con
property rights.
tract
lion.
As
Idaho,
Winschell,
cited New York
of Dalliba v.
of Raht
“It
case
v. Attrill:
Rep. 267,
integrity
best for all
114 Am.
that the
of contracts
Pac.
St.
strictly regarded
maintained,
a should
one which a receiver was
us,
mine,
however,
thority
rigid,
and that a
liberal,
clear
“It
rather
was held:
than
con
and it
equity
power
au struction of
has no
a court of
to sub
ject property
place
charge
in the hands
its receiver
of receivers
charges,
prejudice
carrying
same,
creditors,
should
adopted.”
mining
general
business,
A
and when it turns
strained or
con
sublimated
likely
placed upon
loss,
struction will
the
not be
out to be at a
as is
to be the
terms
up
charge
receivers,
cases,
statute
sult in such
the same
but it will
reasonably
preferred
powers giv
construed,
claim
be
en or
and lien
prejudice
plainly
created
and loss of the
unless
holders
expressed
property.”
therein, especially
liens on the
recorded
same
impair
*6
obligations
ginning them will
be to
the case now before
us the
prior
destroy
prior
contracts and
or
season was over and ice would not be at
weaken
property rights.
yet
premium,
in
season for cot-
that dull
repairs
by
ice,
Supreme
Oregon,
ton and
were made
As said
Court of
nothing in
at
could
in the
least
There
be
S.
Co.
U.
Investment
v. Port-
sight
ginning
Hospital,
523,
644,
property
land
194,
the manufacture
ice and
40 Or.
64 Pac.
67 Pac.
many
yet
ahead,
627,
of cotton for
56 L. R. A.
months
ex-
when the
penses
parties
receivership
were incurred
lien holders
that would cut off
not
to a
nearly»
corpus
sought
subjected
suit
claims: “The
one-third of the
estate.
to certain
opinions
appointed
The consensus of
in
the United
receiver was not
at
upon
opposed
destroying
request,
application,
their
nor
States is
the mort-
nor
their
gage
person
receivership
anything
pro-
lien of a
not
was there
to receiv-
in the
ceedings
ership,
gaged property
consumption
to the
of the mort-
indicate
them that
charge
paying
expenses
mortgaged property
a intention to
preferred
by mortgagee.
with a
lien for
not desired
There
debts contracted
justification
procured
mortgagee
can
a the receiver.
be no
of such
therefore
Where
appointment
power
the
and
of a
course unless the Texas
statute has de-
clared that
the lien on
and conduct the
relegated
place
object
mortgagor,
must be
business
subordination
he cannot
expenses
receivership
expenses
to the
of a
which
incurred
purposes
preference
party,
the
he
found in the
such'
*
a
such
his lien.
was not
and of
**
appointment
provision
But
no notice. No
can
where
not
upon
only
application
right
Texas,
made
to
statutes of
he has a
given
preferred
insist that the
favor of the
debts
re-
six
contracted
precedence
ceiver shall not
claims mentioned in
take
statute is “on
over his
although
moneys coming
may
into the
re-
he
hands
appointed.”
earnings
prop- which the
ceiver which are the
receiver was
erty
provided
atte'mpted,
if
his hands.” It is
Even the
further
statutes of Texas
(article 2135,
1911)
not,
rights acquired
the
court shall
the
do
statute
to set
S.
“the
aside
un-
money coming
contracts,
der
ceiver,
into
debts contracted
re-
earnings
derogation
it would
hands of
receiver as
of the Con-
paid
States,
pro-
his hands is
stitution of the
vides that
out on the
United
pass
claims
said receiver
no state shall
im-
“law
pairing
mortgaged
obligations
of their
as named
above.” There
of contracts.”
If
no
can be consumed
preferred
statutory
receiver, appointed
claims,
to secure
debts of a
and
any knowledge
without the
mortgagee,
proceeding
in order to ascertain
in a
existence
party, any
such lien
equity,
ceivers,
to which
resort must be had
the rules of
he was not a
au-
law
thorizing
procedure
only
such
re-
would not
duties,
impair,
absolutely
powers,
liabilities,
obliga-
destroy,
but
ICE CLINT
415
BREWING- 00. v.
expenses
superior-
receivership
expressed
to be
tion
is not
of tile contract.
It
mortgage.
appellant’s
Legislature'
The re
statute,
never lien to the
in
intended that it should be
thereby
ceivership
appellant,
done,
of the-
at the suit
the law
was not ordered
inequitable
engine
of destruction
defense,
of
of
exhaust his
or
which there would be
escape.
instance
As a
taken out
be no
which there would
parties.
p.
High,
796,
730. Rev.
case of
Rec.
said
the federal
the-
A. St. art.
where
Hanna
16 C. C.
Trust
70 Fed.
5S6,
for the-
is at
instance .or
R. A. 201: “If it
once set
30 L.
proposition
through
chancery court,
benefit of
is
lien holder.”
tled that
ceiver
only by
supported,
the authorities-
on the
many others,
carry
cited,
mortgagee,
and is-
of hereinbefore
but
on the business
upon
honesty
corporations
founded
the rules of
such
expense
risk and
insolvent
at the
justice.
402, 414, pp.
holding
426-
or
Beach
Rec.
those
property
440;
corporation,
Railway, 117 U.
Union Trust Co. v.
liens
such
Meyer
Sup.
L.
Ed.
liens
If one-
Ct.
would have little or
value.”
Johnston,
Ala.
last
237. The
third or one-half of
mort
the value
Railway,
gaged property
months,
body
of McLane v.
six well as the case
is consumed
five or
early consumption
the-
Cal.
6 Pac.
is cited to sustain
of the whole
proposition
Case,
possible
Ellis
enunciated
of the estate is not
probable.
proposition
mort
both
gagees
cases in which the
of them were
The broad
laid down
receivership.
Company,
As
Ellis v. Water
expense
Beach'in the citation last made: “Receiver’s-
certificates do
the
W.
administer
ing
any particular
charged
not in
affect
estate
to be
par
income,
sufficient,
of lien holders
if
net
upon
that be not
then
proceedings..
privies
proceeds up
ties
itself or its
supporting
sale,
the-
one of the elements
isit
intended to be
to first
doctrine,
strong
parties
and a
reason for the ex
lien holders who are not
power
certificates,
receivership proceedings,
sup
to issue
ercise
placed
ported
those who cause the
the
to be
deci
statute
well-considered
custody
sions,
promot
of the court are to be considered
and such a rule would result in
consenting
preserve
ing
utterly dismantling
protec as
to whatever
fraud and
to,
protect
power
property rights by
to
issue such certificates is
it.” The
tion thrown about
consti
dangerous one,,
tutions and statutes.
The decision
said, being “merely
often, as has been well
case must be confined to
the facts
Making
cer
license to do mischief.”
show that the
*7
holders were
corpus
property
directly
tificates
mortgagees invoking
lien on the
to the suit. The
nor
statute neither
receivership
implication
gives any
as far
is
lien on the
equity
go;
as
justification
court of
should ever
the
of the estate for the six claims named as
who,
being
being preferred
authority,
equity
contrary
for that
that
claims, and courts
no
have
litigate
pay
general
must
the costs.
principles
either
applicant
announcing
[3] In this case the
statute,
fromor
the
for
property
had no
in
proposition
interest
the
doctrine. The
on which
except
might
surplus
in so far as there
be a
in
the decision
voked
the
v.
in
Ellis Water Co. is
paying
by appellee
utterly
after
off the first
and
had
he
at variance with
opinion
right,
no
and
could
endowed
statement made in
the
that “the
right by
court,
needlessly
destroy any
to
the
sacrifice the
does not
liens that
property
of the first lien holder.
acquired
appoint
Under the
have been
before the
allegations
ship,
opinion
of the
for the receiver
ment.” The Ellis
seems
have rest
court should not
assumption
public
the
have entertained
ed on the
the
had an
suit,
nothing
the
could result in
system,
but
interest
in the waterworks
but no
impairment
mortgaged
plea
or sacrifice of the
can
such
chances
system
be sustained
this case. The
property.
McConnell,
Galvin v.
53 Tex. Civ.
are there
one such water
App. 486,
Campbell
S. W.
Bank
every
117
community,
v.
one
(Sup.)
430.
interested,
every
would be
one uses water
greater
extent,
[4] On December
to a
or less
but not
about
so with a
a month
gin
might
plant.
after the receiver was
or ice
There
be several of
the dis
many
them,
people
trict court in
pellant
and for
county,
and
Cameron
would have no in
Eifty-Eifth
filed suit
terest whatever
them.
dis
county
opinion
proposition
trict court of Harris
notes,
advanced in this
three
The
aggregate
regard
being
$12,100,
in and
subject
judgment
receivership asked for and obtained a
for the
the
together
amount,
party
with a
is not
foreclosure of
to which
sustained
question.
lien on the
ease of Houston
Co. v.
The
Ice
de
App. 239,
Strang,
fendants
Puller,
were A. L.
Houston Ice & Brewing Co. v. Clint
159 S.W. 409
Tex. App.1913Check TreatmentAI-generated responses must be verified and are not legal advice.