138 S.W.2d 924 (Tex.Civ.App. 1940), 13899, State v. Nix

Docket Nº:13899.
Citation:138 S.W.2d 924
Opinion Judge:SPEER, Justice.
Party Name:STATE ET AL. v. NIX ET AL.
Attorney:Gerald C. Mann, Atty. Gen., and Pat M. Neff, Jr., Asst. Atty. Gen., for appellant State. Wm. Madden Hill, of Dallas, for appellee Howard Dailey.
Case Date:March 15, 1940
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas

Page 924

138 S.W.2d 924 (Tex.Civ.App. 1940)




No. 13899.

Court of Civil Appeals of Texas, Fort Worth.

March 15, 1940

Rehearing Denied April 12, 1940.

Appeal from District Court, Gregg County; D. S. Meredith, Judge.

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 and others intervene. From the judgment, the State and others appeal.

Judgment of trial court reversed and judgment rendered in conformity with answers of Supreme Court to certified questions, 133 S.W.2d 963.

Gerald C. Mann, Atty. Gen., and Pat M. Neff, Jr., Asst. Atty. Gen., for appellant State.

Steve M. King, U.S. Dist. Atty., and John D. Rienstra, both of Beaumont, J. L. Backstrom, of Dallas, and B. W. Berg, of Washington, D. C., Sp. Attys. for Bureau of Internal Revenue, for intervener United States.

Wm. Madden Hill, of Dallas, for appellee Howard Dailey.

SPEER, Justice.

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 eight per cent per annum from its date, along with the usual and customary ten per cent attorney's 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 11, 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, 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 be applied to the liquidation of plaintiff's debt and for general relief.

Page 925

After notice, the court heard the application and entered an order appointing a receiver of the business operated by W. L. Nix, in which order, among other things, it is recited: "* * * And the plaintiff appearing by counsel and the defendant having appeared, and plaintiff having announced ready on his application; the court having read the verified oath of complaint and hearing the statement and admissions in open court, is of the opinion and finds that the same presents the proper case authorizing the appointment of a receiver, ex parte, and for granting the relief shown in this order." J. G. Strong was appointed receiver, his bond set and his duties defined.

The federal government, the...

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