American Nat. Ins. Co. v. Valley Reservoir & Canal Co.

• Decision Date: 05 February 1919
• Docket Number: (No. 6099.)
• Parties: AMERICAN NAT. INS. CO. et al. v. VALLEY RESERVOIR & CANAL CO. et al.
• Court: Texas Court of Appeals

209 S.W. 438

AMERICAN NAT. INS. CO. et al. v. VALLEY RESERVOIR & CANAL CO. et al.

(No. 6099.)

Court of Civil Appeals of Texas. San Antonio.

February 5, 1919.

Rehearing Denied February 26, 1919.

Appeal from District Court, Cameron County; W. B. Hopkins, Judge.

Suit by the American National Insurance Company and another against the Valley Reservoir & Canal Company and others. Motion by J. R. Alamia and others, defendants, to substitute receivers. Granted, and plaintiffs appeal. Defendants' motion to dismiss appeal granted.

Denman, Franklin & McGown, of San Antonio, and Williams & Neethe, of Galveston, for appellants.

Dougherty & Dougherty, of Beeville, E. P. Scott, of Corpus Christi, James B. Wells, of Brownsville, Samuel Spears, of San Benito, and G. R. Scott and Boone & Pople, all of Corpus Christi, for appellees.

MOURSUND, J.

The American National Insurance Company and the San Antonio Loan & Trust Company instituted suit against the Valley Reservoir & Canal Company, the La Lomita Irrigation & Construction Company, the Edinburg Townsite Company, and John Closner and W. F. Sprague, individually and as members of the partnership doing business under the firm name of Closner & Sprague, and by amended petition included many persons as defendants who were alleged to be owners or claimants of debts against the original defendants or some of them. A number of persons who held claims intervened. The prayer in the original petition for the appointment of receiver was granted, and Frank Webb and E. C. Northern of Galveston county were appointed receivers.

On June 26, 1917, a decree of foreclosure was entered in said cause, disposing of all rights of all parties to the litigation, and provided for the sale of the properties on which a foreclosure was granted; such sale to be made by a master, who was to ascertain certain priorities of receivership certificates and report his action for confirmation of the court. After an order of sale had been issued as provided for in such decree, certain unsecured creditors, on November 3, 1917, filed a motion for an order setting aside portions of the decree. Appellees state that this was joined in by the defendants in the main suit, by separate pleading, but call attention to the fact that such pleading is not contained in the transcript. Plaintiffs filed an answer to such motion. Upon a hearing in chambers on November 5, 1917, the district judge made an order granting a postponement of the sale, and on December 14, 1917, entered an order reciting that evidence had been heard on said motion, and decreeing that so much of the decree of June 26, 1917, as directed the issuance of an order of sale be set aside, and that the provision for sales as under execution be also set aside, and that the assets be sold by the receiver at private sale and in parcels for cash or part cash and part credit, such sales to be confirmed by the court, but that no sale shall be made until the court shall have acted on the motion to substitute receiver.

On December 14, 1917, a motion was filed by J. R. Alamia and others to substitute receivers, and, an answer being filed thereto by plaintiffs, the court on said date entered an order continuing said motion and directing that said motion and other motions would be heard on January 3, 1918, in chambers, at Corpus Christi. On January 3, 1918, such hearing was had, evidence was heard on the motion to substitute receivers, and the same was granted, the former receivers removed, and directed to deliver all property belonging to any of the defendants to E. F. Rawson and A. A. Hughes who were appointed to succeed such receivers.

The order provides:

"Said receivers shall have the power, under the control of the court: (a) To bring and defend actions in their own name; (b) to take immediate charge and possession of all of the property of each and all of the defendants of every character whatsoever, real, personal and mixed, including choses in action of all kinds, especially notes and other evidences of indebtedness held as collateral security by creditors of said defendants or any of them; (c) to receive rents, collect, compound for and compromise demands; (d) to sell in separate tracts or parcels from time to time any of said property at private sale for cash, or part cash and part credit, as to them may seem best, whether real or personal property, subject to the confirmation of the court or the judge thereof, which confirmation may be had in vacation or term time on such notice as the court or judge may prescribe, and to convey, transfer and deliver the same to the purchaser or purchasers thereof, free from, or subject to, the liens of plaintiffs, defendants and interveners herein, as to the receivers may seem best, and receive the proceeds arising from such sales; (e) to release vendor's liens; (f) to take immediate possession of, keep, maintain and operate all irrigation plants and properties of the defendants, whether belonging to one or more of them, under the direction of the court or the judge thereof; (g) to demand and receive from the receivers heretofore appointed and acting in this cause, and all other persons holding property of any character belonging to the defendants, or any of them, especially notes or other evidences of indebtedness, in the possession of said receivers heretofore appointed, or any other person or persons, as collateral security for any indebtedness of said defendants, or any of them, and to receipt for the same and to hold the same, or money collected thereon, or proceeds arising from the sale thereof, subject to such claims, liens and demands as may be determined by the court to exist against the same; (h) generally to do only such acts respecting said property as the court or judge thereof may from time to time authorize."

The orders of December 14, 1917, and January 3, 1918, were excepted to by plaintiffs at the time they were rendered, and notice of appeal given, and on January 23, 1918, appeal bond was filed.

Appellees have filed...