State v. Nix, 13899.
| Decision Date | 15 March 1940 |
| Docket Number | No. 13899.,13899. |
| Citation | 138 S.W.2d 924 |
| Parties | STATE et al. v. NIX et al. |
| Court | Texas Court of Appeals |
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.
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.
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 State of Texas, and R. P. Ash intervened as creditors of W. L. Nix. Ash's claims consisted of two notes secured by chattel mortgages. The first note was for $1,750, dated April 27, 1933, with eight per cent interest per annum from date, and ten per cent attorney's fees, secured by a chattel mortgage lien on what was known as the Heartfield Refining Company plant (excepting the part previously mortgaged to plaintiff). Ash's second note was in the sum of $4,651.86, dated September 19, 1933, with eight per cent interest per annum from date and attorney's fees, secured by a chattel mortgage on one 1500-barrel capacity Pipe and Still, Water Cooling Tower, Laboratory Building and Equipment, Pipe and Equipment in Water Well, 2000-barrel capacity bubble tower, Bath house and equipment, Office furniture, typewriter and filing cabinets. It was alleged these notes were both due and unpaid. Prayer in that intervention was for debt and foreclosure of the lien on the property described.
The State of Texas intervened under its claim for $28,870.16, due the State by W. L. Nix for taxes on motor fuel manufactured and sold, upon which the tax had not been paid under Article 7065a-1 et seq., Vernon's Civil Statutes, and for a foreclosure of its alleged first and preferred lien on all the property of W. L. Nix, including that described in plaintiff's and Ash's alleged chattel mortgages.
The United States, acting by and through W. A. Thomas, Collector of Internal Revenue for the Second District of Texas, intervened, made proof of and asked for judgment for its debt of $20,907.61 for taxes and penalties due on motor fuels manufactured and sold by Nix, for which no payment had been made. This intervener claimed and asked for a foreclosure of its first and preferred lien on all property of Nix, under and by virtue of Section 3466 of Revised Statutes of the United States, Section 191, Title 31 U.S. C.A.
Thereafter, on January 21, 1938, Howard Dailey was permitted by the court to intervene, as the sole plaintiff, under allegations that he had acquired all the rights in the subject matter theretofore held by the original plaintiff, M. R. Ingram, and intervener, R. P. Ash. An amended petition was at that time filed by intervener Dailey, alleging the indebtednesses and liens acquired by him, largely in the same language previously set out by Ingram and Ash. Further allegations were made that the receiver, theretofore appointed by the court, had, under orders of the court, sold the assets of W. L. Nix, doing business in the name of Texas Refinery, and had turned into the registry of the court (less costs and expenses incurred) the total sum of $7,466.92.
Prayer was for allowance of his indebtedness, that he be given judgment for the amount and that his claim and liens be decreed as prior and superior to all others of the parties, whether plaintiff, defendants or interveners, and that an order be entered directing payment from the funds in the registry of the court, for costs and general relief.
Interveners, United States and the State of Texas, renewed their pleas of intervention in much the same way as in their original pleadings, and further answered and denied that the substituted plaintiff, Dailey, was entitled to the relief sought. Each intervener insisting upon its respective rights and priorities theretofore pleaded.
Upon trial to the court, evidence was heard, about which there is little or no...
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United States v. State of Texas v. 19 8212 21, 1941
...assets available would not completely satisfy even the claim of Texas and that Dailey and the United States would receive nothing. State v. Nix, 138 S.W.2d 924. A motion by the United States for a rehearing was denied, and the Supreme Court of Texas refused to review the decision of the Cou......
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Maro Co. v. State, 5512.
...has been levied upon. 61 C.J. 1918; International Harvester Co. of America v. Smith, Tex. Civ.App., 91 S.W.2d 827; State et al. v. Nix et al., Tex.Civ.App., 138 S.W.2d 924. Article 7146 of the Revised Civil Statutes provides: "Real property for the purpose of taxation, shall be construed to......
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State v. Nix, 13899.
...in conformance with the direction of the United States Supreme Court, 62 S.Ct. 350, 86 L.Ed. ___, and as reformed affirmed. See, also, 138 S.W.2d 924. Gerald C. Mann. Atty. Gen., and Pat M. Neff, Jr., and Geo. W. Barcus, Asst. Attys. Gen., for the Wm. Madden Hill, of Dallas, for Howard Dail......