State v. Wynne
Decision Date | 14 January 1938 |
Docket Number | No. 13632.,13632. |
Parties | STATE v. WYNNE et al. |
Court | Texas Court of Appeals |
Appeal from District Court, Van Zandt County; G. O. Crisp, Judge.
Suit by B. J. Wynne and others against the Star Refining & Producing Company to recover on a note and to foreclose a mortgage lien, wherein the State of Texas, the United States and others intervened. From a judgment, the State of Texas appeals.
Affirmed.
William McCraw, Atty. Gen., and Pat M. Neff, Jr., Asst. Atty. Gen., for the State.
Julius H. Runge, of Dallas, for appellee A. M. Lockett & Co., Ltd.
Wynne & Wynne, of Wills Point, for appellee B. J. Wynne.
Julius H. Runge, of Dallas, and Robert Sansom, of Fort Worth, for appellee James Harrison.
Geo. M. Conner, of Fort Worth, for appellee R. F. Milam, trustee.
Wren, Pearson & Jeffrey, of Fort Worth, for appellee A. T. & S. F. Ry. Co.
Massingill & Belew, Homa Hill, and B. B. Paddock, all of Fort Worth, for appellee W. B. Harrison.
Clyde O. Eastus, U. S. Atty., and Frank B. Potter, Asst. U. S. Atty., both of Fort Worth, and J. L. Backstrom, Sp. Atty., Bureau of Internal Revenue, of Dallas, for the United States.
Wynne & Wynne, of Wills Point, for appellees Herman Gartner, C. L. Wilson, Bert K. Smith, Oscar Vogel, W. M. Harrison, Clara Mabry, Myrtle Moad, Joe King, J. B. Craddock, Guardian, and J. B. Moon.
Harris & Palmer, of Dallas, for appellee Centennial Oil & Gas Co.
Samuels, Foster, Brown & McGee, and A. M. Herman, all of Fort Worth, for appellees Jean Craddock Lewis et al.
This suit was instituted by B. J. Wynne on May 12, 1935, against the Star Refining & Producing Company, to recover on its promissory note, in the principal sum of $2,000, of date September 22, 1932, payable 90 days after date, with interest and attorney's fees, and to foreclose the mortgage lien upon all the real property and other assets of the defendant, located in the county of Tarrant, State of Texas, given by defendant to secure twenty five-year first mortgage 8 per cent. bonds that were hypothecated to plaintiff at the time said note was executed as security therefor. Plaintiff alleged that the defendant is indebted to the federal government for taxes in the sum of $12,000, and to the State of Texas for gasoline taxes in the sum of approximately $18,000; and that the defendant is insolvent or threatened with insolvency and without means to pay said taxes, since its capital stock and surplus on hand has been exhausted and it has no cash assets with which to pay its debts.
Further allegations were to the effect that the market for defendant's refined products has been broken by competition with dealers in "hot oil," operating in violation of the law, and by reason thereof, it has been impossible now to refine crude oil with profit and thus realize funds to pay its indebtedness by further operating its business.
It was further alleged that the federal and state governments were both threatening to file liens against the defendant's assets and thus further jeopardize the interests of all holders of the series of five-year first mortgage 8 per cent. bonds, which include the twenty, now held by plaintiff as collateral security for the note in suit. By reason of the facts noted, plaintiff prayed for immediate appointment of a receiver to take charge of the defendant's property and hold it, subject to orders of court.
The petition was duly verified, and on the same day of its filing the defendant filed its answer thereto, entering its appearance, waiving any notice of hearing of the application, and also praying for appointment of a receiver, upon allegations of the same facts with extended elaboration of details.
Immediately upon the filing of the petition and answer, Hon. G. O. Crisp, judge of the court in which the suit was instituted, filed his order, appointing W. M. L. Johnson receiver to take charge of the property and hold the same until further orders from the court, and requiring the receiver to file bond in the sum of $2,000, conditioned as required by law.
The receiver so appointed duly qualified by giving the prescribed bond and taking the necessary statutory oath and took charge of all assets belonging to the defendant.
The federal government filed its claim of prior and superior lien under its internal revenue laws, on the assets of the defendant company in the hands of the receiver, for gasoline taxes, together with proof of filing with the county clerk of Tarrant county notice of its claim of lien therefor.
The State of Texas intervened for occupation taxes owing by the defendant company as a distributor of gasoline, under provisions of article 7065a, Vernon's Ann. Tex.Civ.St., Acts 1929, 2d Called Sess., c. 88, § 17, Acts 1931, c. 98, § 2, with a claim of lien on the property in the receiver's hands and described in the judgment, prior and superior to the lien of the federal government and to the claims of all other interveners.
The names of other interveners and claims asserted by them appear in the judgment.
The case was tried without a jury, and following is a copy of the judgment rendered on June 30, 1936, omitting certain unnecessary repetitions:
"1 Worthington 1-1/2" Type U-1 two-stage, horizontal split case, volute centrifugal pump.
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