133 S.W.2d 963 (Tex. 1939), 7574, State v. Nix

Docket Nº:7574.
Citation:133 S.W.2d 963, 134 Tex. 476
Opinion Judge:SHARP, Justice.
Party Name:STATE et al. v. NIX et al.
Attorney:[134 Tex. 477] Gerald C. Mann, Atty. Gen., and Pat M. Neff, Jr., and Geo. W. Barcus, Asst. Attys. Gen., for appellants. Wm. Madden Hill, of Dallas, Steve M. King, U.S. Atty., of Beaumont, and J. L. Backstrom and B. W. Berg, Sp. Attys., both of Dallas, for appellees.
Case Date:December 06, 1939
Court:Supreme Court of Texas
 
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Page 963

133 S.W.2d 963 (Tex. 1939)

134 Tex. 476

STATE et al.

v.

NIX et al.

No. 7574.

Supreme Court of Texas

December 6, 1939

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Suit by M. R. Ingram against W. L. Nix, doing business under the trade-name of Texas Refinery, and another, for recovery on a note and to foreclose a chattel mortgage, wherein the State of Texas and others intervened. From the judgment entered therein, the State of Texas and others appealed to the Court of Civil Appeals. On certified questions.

Questions answered in accordance with opinion.

[134 Tex. 477] Gerald C. Mann, Atty. Gen., and Pat M. Neff, Jr., and Geo. W. Barcus, Asst. Attys. Gen., for appellants.

Wm. Madden Hill, of Dallas, Steve M. King, U.S. Atty., of Beaumont, and J. L. Backstrom and B. W. Berg, Sp. Attys., both of Dallas, for appellees.

SHARP, Justice.

This case is before us on certified questions from the Court of Civil Appeals for the Second District. The statement and certified questions read as follows:

'The appeal pending before this court in the above styled cause grows out of a judgment rendered by the District Court of Gregg County, in favor of Howard Dailey, as intervening plaintiff, against W. L. Nix, in which Dailey was awarded a recovery for a portion of the amount sued for, the establishment of the validity and priority of his chattel mortgage lien [134 Tex. 478] on certain personal property, and the right to have his judgment paid out of certain funds held in the registry of the court. The funds from which payment was ordered were placed in the registry of the court by a previously appointed receiver of the property of the defendant, Nix.

W. L. Nix was, for a time, engaged in the refinery business, under a trade name of Texas Refinery. He manufactured and distributed motor fuel and thereby became liable for the payment of certain taxes thereon to the United States and to the State of Texas. He failed to pay certain of those taxes, and when suit was instituted against him by the original owner of certain notes owing and to foreclose certain chattel mortgage liens previously executed by him to secure their payment, a receiver was appointed, who, under orders of the court, leased the refinery plant for a time and later sold its physical assets. The proceeds coming into the receiver's hands were deposited in the registry of the court.

'We believe that the following statement from the entire record will suffice to place before the Court the points involved:

'M. R. Ingram sued W. L. Nix, doing business in the trade name of Texas Refinery, and Heartfield Refinery Company, Inc., in a district court of Gregg County, Texas, for recovery on a note in the principal sum of $1,103.49, with interest at 8% per annum from its date along with the usual and customary ten per cent attorney fees, seeking a foreclosure of a chattel mortgage lien on six 250-barrel run down tanks, and one 1000-barrel storage tank, alleged to be a part of the equipment used in connection with a refinery. The note and mortgage were alleged to have been executed by Heartfield Refining Company, Inc., to plaintiff, on May 11th, 1933, and that the chattel mortgage lien was forthwith filed for record.

'Further allegations are to the effect that subsequent to the execution and delivery of the note and mortgage, Heartfield Refinery Company, Inc., for a valuable consideration, sold and delivered to defendant, W. L. Nix, the mortgaged property,

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and that Nix assumed to pay plaintiff said indebtedness evidenced by the note.

'Plaintiff's pleadings further show that the indebtedness is past due and unpaid, that demand has been made therefor and that Nix is insolvent. Other allegations state facts which, if true, would authorize the appointment of a receiver for the business operated by Nix.

'Prayer was for the debt and foreclosure of the chattel mortgage lien and for a receiver; that a sale of the property by the receiver be ordered and that the proceeds of such sale [134 Tex. 479] be applied to the liquidation of plaintiff's debt and for general relief.

'After notice, the court heard the application and entered...

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