Ellis v. Vernon Ice, Light & Water Co.

• Decision Date: 10 May 1893
• Docket Number: (No. 990.)
• Citation: 23 S.W. 856
• Parties: ELLIS v. VERNON ICE, LIGHT & WATER CO. et al.
• Court: Texas Court of Appeals

23 S.W. 856

ELLIS v. VERNON ICE, LIGHT & WATER CO. et al.

(No. 990.)

Court of Civil Appeals of Texas.

May 10, 1893.

Appeal from district court, Wilbarger county.

Proceedings in the matter of the receivership of the Vernon Ice, Light & Water Company. W. O. Ellis, a lien claimant, and other lien claimants against the property of the company, intervened. From a judgment giving certain liens priority to his, Ellis appeals. Affirmed in part, and reversed in part.

Eugene Williams, for appellant. Stephens & Huff, for appellees.

Statement.

STEPHENS, J.

The assets of the Vernon Ice, Light & Water Company, a private corporation chartered for the purposes indicated by its name, were on the 19th day of December, 1891, upon the application of J. B. Lockett, a creditor without judgment or lien, placed in the hands of a receiver. In February following, at a regular term of the district court, upon the motion of Clower, Harris & Co., judgment and lien creditors, who had intervened in the suit, the receivership was, by order of the court, continued in force. About the same time the First National Bank of Vernon filed its plea of intervention, also praying for the continuance of the receivership. In June following, D. A. Turner and others intervened. In July, appellant, Ellis, the holder of the bonded indebtedness, amounting to about $18,000, of the said company, secured by the first and only mortgage on its entire plant and assets, filed his plea of intervention, containing a general demurrer to the petitions of plaintiff and the other interveners, a general denial, and a special plea setting up his ownership of the bonds and mortgage with power of sale, alleging default in the payment of interest, and praying a foreclosure of his prior lien, and that the sale be made through himself as trustee, or through such other person as the court might select. He also alleged a title to the lots upon which the waterworks plant was, in part, situated, derived from an execution sale made under one of the judgments in favor of Clower, Harris & Co., foreclosing an attachment lien created subsequent to the deed of trust. There was a trial without the intervention of a jury, and the record contains the court's conclusions of fact methodically stated, but no statement of facts. Our conclusions will therefore rest upon these findings of fact.

Conclusions.

1. The first assignment — that there was error in overruling the general exception of appellant to the pleadings of the other parties — cannot be sustained. If any one of these pleas was good for any purpose, (which must be admitted,) the general demurrer was properly overruled. Oliphant v. Markham, 79 Tex. 543, 15 S. W. Rep. 569; May v. Jones, (Ga.) 14 S. E. Rep. 552. Besides, the assignment is very general, and no proposition is submitted under it.

2. The second and third assignments complain of the court's conclusions (1) that the appointment of a receiver at the instance of a simple contract creditor of an insolvent corporation was authorized by the third subdivision of article 1461 of Sayles' Civil Statutes; (2) that, if there was error in such an appointment, the same was cured by the subsequent confirmation of the appointment at the instance of Clower, Harris & Co., who were judgment and attachment-lien creditors. We are of opinion that the findings on this issue should not be disturbed, if for no other reason, because appellant failed to take any steps in the trial court to vacate the receivership. We fail to find in the record any motion or prayer on his part for such relief, and the only assault made upon the receivership by his pleadings in the court below which we have been able to find consisted of the following statement, incidentally made in parenthesis: "Not admitting, but denying, the legality of the receivership proceedings herein." The rest of his plea seems to have contemplated the continuance of the receivership, which was supplemented by an agreed judgment to that effect, and we think he must be held to have acquiesced therein.

3. The fourth assignment, in the language of appellant, "goes to the right of the court in any case, other than a railway receivership, to fix upon the corpus of the property a lien prior to the first mortgage bonds," which right is denied by him. This position seems to us to be arbitrary, and without support in reason or authority. The ground upon which this right was denied in case of a navigation company (Bound's Case, 50 Fed. Rep. 312,...