Ex Parte Klugsberg, Motion No. 12190.
| Decision Date | 30 October 1935 |
| Docket Number | Motion No. 12190. |
| Citation | 87 S.W.2d 465 |
| Parties | Ex parte KLUGSBERG. |
| Court | Texas Supreme Court |
Everett L. Looney, of Austin, for relator.
This is an original application for writ of habeas corpus by Julius Klugsberg. The record before us is rather meager, but we deduce therefrom that the state through its Attorney General has sued relator, operating and doing business under the trade-name "Texas Candyland," in the 126th district court of Travis county, Tex., for taxes under our State Cigarette Tax Law, article 7047c, Vernon's Ann. Civ. St. (original, Acts 1931, 42d Leg., c. 73), and that on the application of the state the district court on September 17, 1935, appointed a receiver, who was ordered and directed to take charge of and possess all the properties of the relator set out in the plaintiff's petition, and further ordered and directed such receiver to possess and take charge of any and all assets belonging to relator "that are employed in the prosecution of defendant's intrastate cigarette business and to hold the same pending further orders of this court." This order also contains certain other matter not necessary to set out here.
After the above order was entered, and while it was in full force and effect, relator, in willful violation thereof, caused a check for $600, signed by him in blank, to issue and be forwarded to his agent, for the purpose of being filled out by said agent to draw the funds of relator from a certain bank. Such check was filled out by the agent mentioned, and the funds were drawn out of such bank and thereby placed beyond the power of the receiver to possess them, when he could have done so had relator not committed the act aforesaid. Also, after the above receivership order was entered, relator, in willful violation thereof, collected from a party owing him the sum of $390.24.
We presume, for the purposes of this opinion, that the above bank deposit and the indebtedness collected and appropriated by relator, as aforesaid, represented property devoted to and used by relator in carrying on and conducting his intrastate cigarette business here involved.
After the commission of the above acts, the receiver made demand on the relator for the money above mentioned, and, on his refusal to deliver, relator was duly cited, tried, and committed to jail for contempt. The contempt order in effect confines relator to jail for three days and until he shall purge himself by delivering to the receiver the above-named sums of money.
In this connection, however, it appears that the contempt order was entered and relator committed to jail after he had perfected his appeal to the Court of Civil Appeals from the order appointing the receiver. Such appeal, however, was by appeal or cost bond only, and not by supersedeas.
The record is before us without a statement of facts, and therefore, for the purposes of this opinion, we must assume that the findings in the contempt judgment, express and implied, are true, and that the property here involved was devoted to and used by relator in his business as an intrastate cigarette distributor; and, further, that such property was used in carrying on such business. We further assume that relator willfully violated the receivership order. Also we assume any other fact proper and necessary to sustain all orders here involved.
If we correctly interpret this record, relator contends that the order holding him in contempt and committing him to jail is absolutely null and void for three reasons: (1) Because the receivership order did not empower or authorize the receiver to take charge of the property here involved; (2) because, after relator had perfected his appeal to the Court of Civil Appeals by cost bond, and while such cause was pending in the last-named court, the district court had no jurisdiction to punish him for contempt for violating the receivership order; (3) because the record does not show that relator is able to pay over such sums of money to the receiver.
It appears to us that the receivership order is so worded as to cover all of the properties embraced by section 8 of article 7047c—1, supra. Whether such order covers the properties here involved therefore depends on whether they...
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