Houston Cemetery Co. v. Drew

• Decision Date: 21 May 1896
• Citation: 36 S.W. 802
• Parties: HOUSTON CEMETERY CO. et al. v. DREW et al.
• Court: Texas Court of Appeals

36 S.W. 802

HOUSTON CEMETERY CO. et al. v. DREW et al.

Court of Civil Appeals of Texas.

May 21, 1896.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Bill by Octavius C. Drew and others against the Houston Cemetery Company and others. From an interlocutory order appointing a receiver for defendant corporation, defendants appeal. Affirmed.

Fiset & Miller, for appellants. Ewing & Ring and E. P. Hamblen, for appellees.

GARRETT, C. J.

This appeal is from an interlocutory order of the district court of Harris county appointing a receiver of the property of the Houston Cemetery Company, and of a trust fund held by said company in a trust capacity. The order was made after notice to the defendants in a pending suit, brought by Octavius C. Drew and others, lot owners in the cemetery, and a holder of a share of the stock in the company, against the corporation itself, and the president, directors, and secretary thereof, and the trustee in a certain deed of trust executed by the company upon the cemetery grounds. The petition alleged facts to show, and charged, that the defendants had failed to maintain the cemetery in a proper state of preservation and adaptation for the uses and purposes to which it was dedicated; that the defendants had, without authority, increased the stock of the company from $10,000 to $100,000, by issuing watered stock; that they had executed a deed of trust, in violation of law, upon a part of the grounds of the cemetery, and that they had wrongfully misapplied a trust fund provided by the charter and by-laws, for the purpose of improving and keeping the cemetery, by loaning it to the company, and executing the above-mentioned deed of trust; that they unlawfully imposed a tax upon the transfer of burial lots by the lot owners, and had closed, altered, and changed the drives, roads, walks, and other open places in the cemetery, as shown by the map and plot thereof upon the faith of which the lot owners had bought. Plaintiff sought appropriate relief in respect to all the matters complained of, and prayed for the appointment of a receiver, who, by the interlocutory order appealed from, was appointed by the court, and invested with all the powers usual or incidental to his office, and specially authorized and directed to carry on and continue the business of the defendant company, and to take all such steps, perform all such acts, and make all such expenditures, and incur all such liabilities, as may be reasonably necessary to maintain the company's cemetery property in a reasonable state of preservation for the uses and purposes of a cemetery, including the repair or construction of such bridge or bridges as may be necessary to that end, and also the obtaining of such supply of water, at reasonable cost, as may be necessary to prevent the waste, decay, or destruction of such cemetery property, or any part thereof, and to protect the franchises of said corporation from forfeiture for nonuser or misuser.

It would not be proper for this court to express an opinion upon the points raised that will determine the rights upon the final hearing of the case. Our decision upon the order of the court below appointing the receiver should be without prejudice to the ultimate decision which the court may be called upon to make. The court appointing a receiver is invested with a large discretion as to the necessity, and its decision of the facts upon the supporting and counter affidavits, when they are conflicting, must be accepted as conclusive. The question, therefore, that remains for the appellate court, is to determine whether or not the case made is one in which a receiver ought to be appointed. If there are any grounds of relief prayed for that would authorize the appointment of a receiver, it need not be made to appear conclusively that the plaintiff is entitled to recover upon them; it will be sufficient if it appears that he has a reasonable expectation of obtaining such relief.

The defendant company was chartered by a special act of the 12th legislature, approved May 12, 1871 (Sp. Laws, 1st Sess., p. 323). It was empowered to acquire and hold not exceeding 500 acres of land in Harris county, to be held for cemetery purposes only, which it was authorized to inclose, lay out, ornament, and improve; and it might arrange and dispose of burial lots, on such terms and with such conditions, for the permanent care and preservation of the cemetery grounds or any part thereof, as may be agreed upon between the company and the purchasers. The company was required to have a map and plot of their grounds and cemetery made from an actual survey, with the lots,...