Brown v. Gay

• Decision Date: 11 March 1890
• Citation: 13 S.W. 472
• Parties: BROWN <I>v.</I> GAY <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 472

BROWN

v. GAY et al.

Supreme Court of Texas.

March 11, 1890.

Appeal from district court, Tarrant county.

Finch & Thompson, for appellant. Ball, Wynne & McCart, for appellees.

STAYTON, C. J.

This action was brought by Nancy J. Gay on February 6, 1888, in her own right and as next friend of her minor child, against John C. Brown, receiver of the Texas & Pacific Railway. The action is founded on claim that John M. Gay, the husband and father, while in the employment of the receiver, was killed under circumstances that made the receiver liable, not personally, but in his official or representative character. On February 25, 1889, appellant filed a first amended original answer, setting up the following defenses, viz.: (1) That it appeared from appellees' petition that appellant was sued as receiver of the Texas & Pacific Railway Company, and that he held his appointment as such by order of the honorable circuit court of the United States, and could not, therefore, be sued without permission of said court, and, further, that it appeared appellant was a resident of Dallas county, and no exception existed allowing him to be sued without the county of his residence; (2) a general demurrer; (3) a general denial; (4) a special answer setting up the final discharge of appellant as such receiver on the 26th day of October, 1888, and his complete relinquishment of all control over said railway and its property on the 31st day of October, 1888, and his unconditional retirement and discharge as such receiver; (5) a further special answer setting out the conditions of the order of his discharge, under and by virtue of which appellees' claim was declared barred unless presented before February 1, 1889, to the honorable circuit court of the United States sitting at New Orleans, state of Louisiana, which appellees had failed and refused to do; (6) a plea of contributory negligence. Attached to this answer, as exhibits, were the petition of the receiver for discharge as well as the order of court discharging him, which were the same as shown in the case of Railway Co. v. Johnson, ante, 463, (at the last sitting decided.) On February 26, 1889, appellees filed a supplemental petition excepting to appellant's plea to the jurisdiction, also excepting to the sufficiency of appellant's answer setting up his discharge as receiver, as well as the answer pleading the order of the United States court in bar of this suit. These exceptions were sustained, and on hearing there was a verdict and judgment against the receiver for $10,000, which the jury apportioned.

There was no error in the court's holding that the action was properly brought, in the first instance, against the receiver, without leave previously given by the court that appointed him, nor was there error in holding that the suit was properly brought in Tarrant county. Sayles' Civil St. arts. 1468, 1469; Act Cong. March 3, 1887.

The answer showed that the receiver had been discharged, and all the property theretofore in his hands delivered to the railway company, in pursurance of the order of the court that appointed him; and the order directing this to be done declared that it should remain liable, in the hands of the company, for such claims as were proper against the receivership. The ruling of the court was that this action might be sustained against the person who was receiver at the time the injury occurred, notwithstanding he had ceased to be the receiver, and to control, or have the right to control, any fund out of which the judgment to be rendered could be paid. The act of March 19, 1889, was not in force when that ruling was made; and its provisions are, therefore, not applicable to this case....