Dallas Joint Stock Land Bank of Dallas v. State

• Decision Date: 13 March 1940
• Docket Number: No. 7691.,7691.
• Citation: 137 S.W.2d 993
• Parties: DALLAS JOINT STOCK LAND BANK OF DALLAS v. STATE ex rel. COBB et al.
• Court: Texas Supreme Court

Page 993

137 S.W.2d 993

DALLAS JOINT STOCK LAND BANK OF DALLAS v. STATE ex rel. COBB et al.

No. 7691.

Supreme Court of Texas.

March 13, 1940.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit in the nature of a bill of discovery by the State of Texas, on the relation of Ed Cobb, Tax Assessor and Collector, and another, against the Dallas Joint Stock Land Bank of Dallas. To review a judgment of the Court of Civil Appeals, 133 S.W.2d 827, affirming a judgment for plaintiffs, defendant brings error.

Judgment of the Court of Civil Appeals affirmed.

Lawther, Cramer, Perry & Johnson, Harry P. Lawther, and Searcy L. Johnson, all of Dallas, for plaintiff in error.

Andrew Patton, Crim. Dist. Atty., and E. G. Moseley, Harold McCracken, David M. Weinstein, and Paul Peurifoy, Asst. Crim. Dist. Attys., all of Dallas, for defendants in error.

HICKMAN, Commissioner.

The State of Texas, upon the relation of Ed Cobb, Tax Assessor and Collector, and Andrew Patton, Criminal District Attorney, both of Dallas county, instituted this suit in one of the district courts of that county, naming the Dallas Joint Stock Land Bank, a corporation, as defendant, the suit being one in the nature of a bill of discovery. The allegations of the petition are well summarized by the Court of Civil Appeals as follows: "Plaintiffs alleged, in substance that valid assessments had been made, against the shares of stock owned by each unknown stockholder of the Land Bank, for the years 1931 to and including 1938; that it was necessary for plaintiffs to ascertain the names of the stockholders who resided in Dallas County (alleging the belief that all resided in Dallas County), and the number of shares of stock owned by each on the respective dates mentioned; that such information was in the exclusive possession of the Land Bank and could not be obtained by plaintiffs from any other source; that, on demand, defendant had refused to furnish the information, and that the stockholders had failed to reveal their identity, that such information cannot be obtained from any other source, or by any means other than by the process of a bill of discovery; that a valid cause of action existed in favor of the State of Texas and County of Dallas for the delinquent taxes due by each individual stockholder, wherefore, plaintiffs sought judgment, compelling the Land Bank to answer the following interrogatories: First: `State, as revealed by your books and records, the names and addresses of the stockholders of The Dallas Joint Stock Land Bank of Dallas, who resided in Dallas County, Texas, on the first day of January, for each of the following years: 1931, 1932, 1933, 1934, 1935, 1936, 1937, and 1938.' Second: `State, as revealed by your books and records the amount and number of shares held by each of such stockholders as asked for in the foregoing interrogatory as of the first day of January, 1931, 1932, 1933, 1934, 1935, 1936, 1937 and 1938.'"

In the trial court judgment was entered as prayed for ordering the bank, by its officers, agents, servants and employees, to answer in writing and under oath the foregoing interrogatories. That judgment was affirmed by the Court of Civil Appeals. 133 S.W.2d 827, 828.

In 1923 the Legislature enacted what is now Article 2002 of our Revised Statutes, which reads as follows: "All trial courts shall entertain suits in the nature of bills of discovery, and grant relief therein in accordance with the usages of courts of equity. Such remedy shall be cumulative of all other remedies."

The first case to reach this court after the enactment of that article was an action by a judgment creditor against a judgment debtor to discover assets of the latter subject to execution. The trial court denied the relief prayed for, but its judgment was reversed by the Court of Civil Appeals. Chapman v. Leaverton, Tex.Civ.App., 263 S.W. 1083, 1088. From the opinion in that case we quote: "While it may be said that the purpose of pure bills of discovery is to provide needed testimony for a suit pending or contemplated, yet it would seem that the suit in the instant case was in the nature of a bill of discovery. * * *"

That opinion recognized that it had been decided in Cargill v. Kountze, 86 Tex. 386, 22 S.W. 1015, 25 S.W. 13, 24 L.R.A. 183, 40 Am.St.Rep. 853, that a bill to discover assets of a judgment debtor would not lie in Texas, but held that same had been authorized by the statute. That opinion ascribed to the Legislature the intention of conferring upon courts a jurisdiction not theretofore possessed by them, not only to entertain bills of discovery, but other suits of that nature, provided only that the relief granted must accord with the usages of courts of equity. An application for writ of error was refused in that case. In reply to a motion for a rehearing upon the application, this court wrote a very significant opinion, which seems generally to have been overlooked. That case was one of several cases disposed of by one opinion which is reported in National Compress Co. v. Hamlin, 114 Tex. 375, 269 S.W. 1024. In that portion of the opinion dealing with the Chapman v. Leaverton case it was stated that the court, in refusing the writ of error, realized that the case involved the construction of a statute of far-reaching importance to the jurisprudence of this state; that the question had been given serious consideration; and that the application was refused because the court was of the opinion that the statute had been correctly construed by the Court of Civil Appeals. The effect of that opinion was to make the opinion of the Court of Civil Appeals authoritative. The controlling question was regarded as being one of statutory construction. Thus viewing the case before us, its solution is not difficult. While it may not be a pure bill of discovery, it is clearly a suit in the nature of a bill of discovery, and the relief granted accords with the usages of courts of equity. Coca-Cola...