Espuella Land & Cattle Co. v. Bindle

CourtCourt of Appeals of Texas
Citation32 S.W. 582
PartiesESPUELLA LAND & CATTLE CO., Limited, v. BINDLE et al.
Decision Date19 October 1895

Appeal from district court, Wilbarger county; G. A. Brown, Judge.

Receivership proceedings by John Bindle and others against the Espuella Land & Cattle Company, Limited. From a judgment approving the final report of the receiver, and allowing him compensation out of the funds in his hands as receiver, defendant appeals. Affirmed.

Coke, Tucker & Coke, for appellant. Hall & Tolbert, for appellees.


John Bindle, as stockholder and creditor of appellant, instituted this suit to have a receiver appointed to take charge of and manage its property. The application was granted by the district court, and J. W. Robbins named as receiver; but, upon appeal to this court, his appointment was revoked, and the receivership vacated, because, in our opinion, the facts were not sufficient to justify the action of the trial judge. 23 S. W. 819. Pending this appeal, Robbins gave bond, and proceeded with the management of the property, in compliance with the order appointing him, for which services the court, in the judgment approving his final report, allowed him compensation in the sum of $1,250, to be retained out of the funds which came into his hands as receiver; and from that judgment this appeal is prosecuted. No assignment is presented questioning the amount of the allowance, but the point is made that, inasmuch as the appointment of a receiver to take charge of appellant's property was erroneously made, it should not be charged with the payment of his compensation, but this should be taxed against the plaintiff below, who brought about the expense. The authorities upon this question are badly in conflict, but we believe the better reason to be with those which hold that, inasmuch as the receiver is appointed to manage and preserve the property pending the litigation, for the benefit of those ultimately adjudged to be entitled to it, the costs of doing this, including his commissions, should ordinarily be made a charge upon the property itself, and paid out of its proceeds, regardless of who finally succeeds. Hopfensack v. Hopfensack, 61 How. Prac. 508; Ferguson v. Dent, 46 Fed. 96; 2 Beach, Mod. Eq. Prac. § 752. To hold otherwise might greatly embarrass the courts in obtaining suitable persons to fill these important positions, for we apprehend that few indeed could be found who would be willing to give the enormous bonds, and incur the heavy responsibilities assumed by receivers of large properties, if they were required to await the result of the litigation for their compensation, and, in case the defendant should be successful, could then only look to the plaintiff for its payment. Again, we think sound policy requires that a receiver should remain unprejudiced, as between the litigants. There should be no inducement for him to promote the success of one more than the other. Being an arm of the court, his sole care should be the preservation and successful management of the...

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26 cases
  • Home Fire Insurance Company v. Wilson, 381
    • United States
    • Supreme Court of Arkansas
    • May 10, 1915
    ...N.Y. 356; Ostrander on Fire Ins., p. 192, § 56; 70 Wise. 1; 35 N.W. 34; 54 Ark. 75; 26 So. 655; 43 N.W. 810; 120 Ga. 247; 66 Mo.App. 29; 32 S.W. 582. 4. There was no expressed nor implied waiver of the provisions of the policy against vacancy. 87 Ark. 327; 86 Ala. 424. 5. Rhea was appellees......
  • Home Fire Insurance Co. v. Wilson
    • United States
    • Supreme Court of Arkansas
    • July 7, 1913
    ...the agent's authority as stipulated in the policy. 2 Clements on Fire Ins. 487, and cases cited in foot notes; 133 N.Y. 356; 54 Ark. 75; 32 S.W. 582. There was neither an express nor implied waiver of the provisions against vacancy. It can not be said in this case that the local agent or an......
  • Central Trust and Savings Company v. Chester County Electric Company
    • United States
    • Court of Chancery of Delaware
    • August 5, 1911
    ...equitable apportionment of the costs in accordance with the benefit received." Citing Espuella Land Co. v. Bindle, 11 Tex. Civ. App. 262, 32 S.W. 582; Highley v. Deane, 168 Ill. 266, 48 N.E. 50, and Cutter v. Pollock, 7 N.D. 631, 76 N.W. 235 The case of Lembeck v. Jarvis, 68 N.J.Eq. 352, 35......
  • Frick v. Fritz
    • United States
    • United States State Supreme Court of Iowa
    • July 13, 1904
    ...264;Beckwith v. Carroll, 56 Ala. 12;Simmons v. Allison, 119 N. C. 556, 26 S. E. 171;Espuella Land, etc., Co. v. Biddle (Tex. Civ. App.) 32 S. W. 582. And this rule is properly applied where the contest is not as to the regularity or legality of the proceedings for the appointment of the rec......
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