Cooper v. Decker

• Decision Date: 03 October 1929
• Docket Number: (No. 10587.)
• Citation: 21 S.W.2d 70
• Parties: COOPER et al. v. DECKER et al.
• Court: Texas Court of Appeals

21 S.W.2d 70

COOPER et al. v. DECKER et al.

(No. 10587.)

Court of Civil Appeals of Texas. Dallas.

October 3, 1929.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by E. A. Decker and others against Hugh Cooper and others for an injunction. From the decree, defendants appeal. Affirmed in part, and reversed and remanded in part.

Turner, Rodgers & Winn and M. B. Solomon, all of Dallas, for appellants.

Ernest Becker, of Dallas, for appellees.

JONES, C. J.

This is an appeal from an order of a district court of Dallas county granting a temporary writ of injunction on the presentation of a petition by appellees E. A. Decker, Otto Busch, and E. V. Becker, suing as trustees, against Hugh Cooper, F. E. Simms and M. B. Soloman, appellants. No motion was made to dissolve, and the facts alleged in the petition become the statement of facts on which appellants predicate their appeal. Only such facts that are necessary for a review of the questions involved in this appeal will be stated.

The Dallas Development Company existed as a corporation with its principal office and place of business in the city of Dallas. E. V. Becker was its president, and its other executive officers were A. E. Decker and Otto Busch. A suit was filed by the state of Texas in a district court of Travis county to forfeit the charter of the corporation, and to appoint a receiver to take charge of its affairs, and on July 28, 1927, a judgment of forfeiture was entered, but the prayer for a receiver was denied. Thereafter the appellees herein, as officers of said corporation, at the time of forfeiture of its charter, took charge of its affairs, as trustees, for the purpose of winding up the estate of such corporation, claiming the right to do so under the laws of this state.

On May 23, 1927, Cooper and Simms, in a suit in a Dallas county court at law, obtained a final judgment against E. V. Becker on a claim against him personally. On June 26, 1928, appellants, as judgment creditors filed a garnishment suit in the court in which the judgment was obtained against the Dallas Development Company, alleged to be a corporation with E. V. Becker as its president, and attempted to secure service on the alleged corporation by serving its said president with the notice of citation. This was the usual garnishment suit seeking to impound for their behalf either funds or property of E. V. Becker, alleged to be in the possession of the Dallas Development Company, but it appears that the primary purpose of said suit was to determine the number of shares of stock Becker owned in said alleged corporation. No answer was filed by the Dallas Development Company to this suit, but E. V. Becker, the judgment creditor, appeared as friend of the court and filed what is styled a plea in abatement, setting out under oath the judgment of forfeiture of the charter, and the fact that all of its affairs were now being administered by appellees as trustees. With this plea in abatement pending before the court, appellants were awarded judgment by default against the Dallas Development Company, a corporation, for $608.33, the amount of judgment against Becker, and due service is recited. In addition to the money judgment rendered against the Dallas Development Company, the court also rendered judgment commanding the Dallas Development Company, through its alleged president, to appear in court and under oath disclose to the court the number of its shares owned by E. V. Becker, and also commanding E. V. Becker to appear in court and under oath make the same disclosure.

It is further alleged in the petition for injunction, that the judgment in the garnishment suit is void, because at the time it was rendered the corporation had ceased to exist, and could only be sued through its trustees, who were neither parties to the suit nor had notice of such suit.

Appellees filed motion for a new trial in the garnishment judgment, based on the facts alleged in the petition for injunction. This motion was overruled, and an appeal was duly perfected to this court, but no supersedeas bond was filed. This case was transferred to the ...