Dabney v. Gordon Petroleum Co.

• Decision Date: 17 November 1923
• Docket Number: (No. 10828.)
• Citation: 258 S.W. 837
• Parties: DABNEY v. GORDON PETROLEUM CO. et al.
• Court: Texas Court of Appeals

258 S.W. 837

DABNEY v. GORDON PETROLEUM CO. et al.

(No. 10828.)

Court of Civil Appeals of Texas. Fort Worth.

November 17, 1923.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Suit by the Gordon Petroleum Company and others against Allen D. Dabney, trustee, and others, wherein Fred Orsini intervened. Judgment overruling defendants' motion to vacate a receivership was entered, and defendant named appeals. Affirmed.

Dabney & Callaway, of Eastland, for appellant.

Burkett, Orr & McCarty, of Eastland, for appellees.

BUCK, J.

On August 1, 1923, the Gordon Petroleum Company, alleged and admitted to be a corporation, filed a first amended petition, in lieu of the original petition filed July 25, 1923. In this petition, it alleged that S. W. Sibley, John Wright, J. D. Wallace, the Liberty Investment Company, a corporation, and others, had at various times loaned plaintiff sums of money, aggregating approximately $180,000; that the defendants required plaintiff to execute notes in amounts largely in excess of the sums borrowed, said notes being made for $287,000; that the difference between $180,000 and $287,000 was usurious interest charged plaintiff by defendants; that these notes were secured by a mortgage on plaintiff's properties; that a sum in excess of $130,000 had been paid by plaintiff to the defendants on the indebtedness; and that plaintiff now owed defendants approximately $60,000, but defendants claimed a balance of approximately $162,000, and that approximately $100,000 of this claimed amount is usury.

Plaintiff further alleged that under the laws of this state a corporation and its president and officers were not authorized to execute and deliver any notes except for money paid, labor done, or property actually received, and that notes purported to have been executed by the plaintiff through its president and now held by the defendants are absolutely void; that the claims of defendants for alleged indebtedness amounting to $100,000 in excess of what plaintiff owed, prevented plaintiff from obtaining money with which to operate and develop its properties, and its creditors are pressing it for the payments of its debts; that plaintiff, but for this alleged void claim for $100,000, could readily pay off its debts and operate and develop its properties. Plaintiff made other parties defendants — the pipe line companies handling its oil, and paying a large part of the proceeds to defendants, certain parties alleged to be illegally claiming the right to certain lease held by plaintiff, and other parties threatening to file claims of some kind against plaintiff's properties.

Plaintiff further alleged that the receiver theretofore appointed, to wit, R. F. Milam, had tendered his resignation. Whereupon, plaintiff asked that defendants be cited, and upon final hearing plaintiff have judgment canceling the claims against plaintiff for said usurious interest, and that it be required to pay only the amount due for money received, to wit, about $60,000, to remove cloud, etc. Pending final hearing, a receiver was asked to take charge of the properties, "and that the court make such other and further orders as the court may deem proper in the premises." The petition was duly verified. On the filing of the petition, the court accepted the resignation of R. F. Milam, as receiver, and Frank A. Judkins was appointed receiver in his stead.

On August 30, 1923, Fred Orsini filed his plea of intervention, setting up the fact that between July 26th and August 18, 1923, he had performed and furnished labor of the value of $84, which plaintiff agreed to pay, and that plaintiff had failed and refused to pay said amount, and on August 27, thereafter, intervener had filed with the county clerk of Eastland county, the county of plaintiff's domicile, a verified statement of account claiming a lien upon certain property belonging to plaintiff. Wherefore intervener prayed that he have judgment for his debt and for a foreclosure of his lien.

On September 13th, Fred Orsini and four others filed their motion, alleging that they were lien creditors of plaintiff. They further alleged:

"That the properties of the plaintiff consist in large part of oil and gas lease drilling and producing properties, and that to conserve, protect, and preserve said properties it is essential that they be given constant and careful work and attention, and that it is necessary that a number of men be employed in and about said properties to conserve, protect, and preserve them.

"That in order to have the property and its revenues forthcoming to whomsoever may be entitled thereto, it is necessary that they be preserved and conserved by this court through a receiver.

"That, as is manifest from the records of this court, this court did heretofore appoint Frank A. Judkins receiver of all the properties and effects of the plaintiff Gordon Petroleum Company, as shown by order herein of date August 1, 1923, and that the said Judkins qualified as such receiver on the 1st day of August, 1923, and continuously since has been acting as such receiver, and as such receiver has held custody, possession, and control of all said properties for this court.

"Wherefore interveners pray that the court now enter order confirming in all things the order heretofore made on August 1, 1923, appointing said Judkins as such receiver and continuing the said Judkins as such receiver, and for such other and further relief as the court may deem proper to grant."

Upon the filing of this motion, the trial court, on August 3d, entered an order confirming the appointment of Frank A. Judkins as receiver, the order reciting the appointment of the receiver on August 1st, and that "by said order the court appointed the said Judkins as such receiver on the court's own motion, in addition to the plaintiff's application for the appointment of a receiver," and that said Judkins had qualified and acted as such receiver since said appointment. Wherefore the court confirmed the previous order of appointment of a receiver.

On September 6th, Allen D. Dabney, trustee, and one of the defendants, filed a motion to vacate the receivership, upon the sole ground that under article 2154, Rev. Civ. Stats., the law prohibited the appointment of a receiver for a corporation upon its own application, and that the court had no jurisdiction to make said appointment upon said application.

On September 7th, the interveners, Orsini et al., filed a reply to the motion to vacate the receivership, in which they...