Dunham v. Randall & Chambers Co.

• Decision Date: 19 October 1895
• Citation: 32 S.W. 720
• Parties: DUNHAM et al. v. RANDALL & CHAMBERS CO. et al.
• Court: Texas Court of Appeals

32 S.W. 720

DUNHAM et al. v. RANDALL & CHAMBERS CO. et al.

Court of Civil Appeals of Texas.

October 19, 1895.

Error from district court, Tarrant county; S. P. Greene, Judge.

Action by Dunham, Buckley & Co. and such others as might join, against the Randall & Chambers Company and others, to set aside certain conveyances, and for other relief. From the judgment therein rendered, plaintiffs bring error. Dismissed.

Stanley & Spoonts, for plaintiffs in error. Hogsett & Orrick, for defendants in error.

Conclusions on Motions to Dismiss.

STEPHENS, J.

Defendants in error move to dismiss this writ of error because plaintiffs in error have voluntarily accepted the benefits of the judgment of which they complain. The Randall & Chambers Company, a private trading corporation, doing business in Ft. Worth, made a conveyance of all its assets subject to execution to a trustee, for the benefit of its creditors, giving preference to those named in Class A (defendants in error) over those in Class B (plaintiffs in error and various other creditors). Dunham, Buckley & Co., a nonresident firm, brought this suit, in the nature of a creditors' bill, in behalf of themselves and all others similarly situated, alleging, inter alia, the insolvency of the Randall & Chambers Company, and praying the appointment of a receiver (which was granted), and that its assets be declared a trust fund, and accordingly prorated among all the creditors, which relief was on final hearing denied, the jury having found against the alleged insolvency at the date of the preferential deed. The other plaintiffs in error, also, with one exception, nonresident creditors, but not all of those in Class B, made themselves parties in accordance with the prayer of Dunham, Buckley & Co. The decree sustained the preferences in the deed, and ordered the receiver to make distribution accordingly among the several creditors so before the court of the funds in his hands, after payment of costs and expenses, the assets having been converted into money pending the litigation. This fund was sufficient to cover the expenses allowed the trustee and receiver and the claims of the preferred creditors in full, and in part the claims of the other creditors. The amounts so decreed to the several plaintiffs in error were voluntarily accepted by them, as appears from the affidavit of the receiver, who, as well as the Randall & Chambers Company, the trustee, and the preferred creditors, moves to dismiss the writ of error; counsel for plaintiffs in error having consented to this method of proof. The court allowed the trustee on his plea for compensation and counsel expense prior to the appointment of the receiver much less than was claimed. Had more been allowed, plaintiffs in error must have received less than they took under the decree. Had the other 17 creditors in Class B joined in the suit, still less would have been received. Had all claimed by the trustee been allowed, nothing would have remained for Class B. On the other hand, had the preferences in the deed been annulled, they must, in any event, have received more than was decreed them.

The contention in behalf of the motions to dismiss is that the principle applied by us in the case of Twombly v. Railway Co., 31 S. W. 81, is applicable to this case also. That principle is thus stated in 2 Enc. Pl. & Prac. 174 (just out): "It is a settled doctrine that where a party recovering a judgment or decree accepts the benefits thereof, voluntarily and knowing the facts, he is estopped to afterwards reverse the judgment or decree on error. The acceptance operates as and may be pleaded as a release of error." It is also there laid down that "the rule is the same at law and in equity." The text is fully sustained by the numerous cases cited in the footnotes. See, also, Elliott, App. Proc. § 150, and cases there cited. The principle has been so generally approved by the highest courts of the various states of the Union that we abstain from a citation of the cases. An able review of many of them may be found in the opinion of the court of appeals of Kentucky in Paine v. Woolley, 80 Ky. 568, holding that even the execution of a judgment bars the right of appeal of him in whose behalf it is executed. On the other hand, the supreme court of the United States, in the case of Erwin v. Lowry, 7 How. 184, though apparently not necessary to the disposition of that case, expressed what seems to be a contrary view, afterwards quoted, seemingly with approval, in the case of O'Haro v. MacCornell, 93 U. S. 150. That a partial execution of a judgment will not affect proceedings in error was distinctly ruled in U. S. v. Dashiel, 3 Wall. 688; but the effect upon such proceedings of a voluntary receipt of the avails of the judgment was expressly pretermitted, as an issue not raised by the facts of that case. Three of the justices, however, dissented from the view of the majority upon the question decided, on the ground that the election on...