Fordyce v. Chancy
Decision Date | 12 January 1893 |
Citation | 21 S.W. 181 |
Parties | FORDYCE et al. v. CHANCY. |
Court | Texas Court of Appeals |
Appeal from district court, Angelina county; L. B. Hightower, Judge.
Action by Thomas Chancy against Fordyce and Swanson, as receivers of the St. Louis, Arkansas & Texas Railway in Texas, to recover for injuries sustained by plaintiff by reason of the alleged negligence of the company's servants. From a judgment for plaintiff, defendants appeal. Reversed.
Finley, Marsh & Butler and Sam H. West, for appellants. Mantooth & Townsend, for appellee.
This is a suit by appellee against appellants, as receivers of the St. Louis, Arkansas & Texas Railway in Texas, to recover damages for injuries received by him while traveling as a passenger over a railroad controlled by appellants. Appellants pleaded that, pending this suit, they had been discharged from the receivership by the circuit court of the United States for the eastern district of Texas, which appointed them, and had relinquished control of the property committed to their charge as such receivers to the purchasers thereof. On the trial it was agreed that the property had been by the appellants turned over to the purchaser under the foreclosure proceedings, and that the appellants, since such transfer, had ceased to have any control or management of the same. The order of the United States circuit court, requiring appellants to turn over the property, provided that all claims against the receivership should be established by intervention in that court, and that the bills in the cause would be retained for the purpose of investigating such liabilities, in order to have a final settlement of such receivership. No order was shown expressly discharging the receivers, and there was no agreement that such order existed, and it in no way appeared that the accounts of the receivers had been acted on, and a decree entered by the court discharging them. This case, therefore, differs materially from that of the Same Appellants v. Beecher, (just decided,) 21 S. W. Rep. 179. That decision was based solely upon the legal effect of the decree of the federal court discharging the receivers, which was admitted to exist. Here the receivers, for all the record shows, may still hold their office, and be in a position to defend the suit, and meet the judgment rendered. It is true it appears that they had turned over the property put in their charge to purchasers, but they are not, so far as the record shows, removed from their offices, and the circuit court expressly retains the bills for the purpose of adjusting their liabilities. We do not think this state of the record presents the same question as was considered in the Beecher Case, and hold, therefore, that appellants' eleventh assignment of error is not well taken.
The nineteenth assignment of error presents the question whether or not the court could properly declare a lien on the property which had been in the possession of the receivers, to secure a liability incurred by them. We do not find it necessary, at this time, to decide this question, and will not do so until it has been more thoroughly argued and considered.
The points raised in the seventeenth assignment of error, and propositions thereunder, were considered in the case of these appellants against Withers, decided on the 8th day of December, 1892, and determined against appellants. 20 S. W. Rep. 766.
Appellants' first assignment of error complains of the admission of evidence to show that after the accident in which appellee was hurt appellants had made changes and repairs in its track. This kind of evidence is usually not admissible. Railway Co. v. McGowan, 73 Tex. 355, 11 S. W. Rep. 336; Railway Co. v. Hennessey, 75 Tex. 155;1 Railway Co. v. Jones, (Tex. Sup....
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