Jones v. United States & Mexican Trust Co.

• Decision Date: 07 November 1907
• Citation: 105 S.W. 328
• Parties: JONES v. UNITED STATES & MEXICAN TRUST CO.
• Court: Texas Court of Appeals

105 S.W. 328

JONES v. UNITED STATES & MEXICAN TRUST CO.

Court of Civil Appeals of Texas.

November 7, 1907.

Appeal from District Court, Harrison County; Richard B. Levy, Judge.

Action by the United States & Mexican Trust Company against the Texas Southern Railway Company, in which S. P. Jones was appointed receiver. From an order denying the receiver interest on an allowance made him by the court, he appeals. Affirmed.

S. P. Jones, for appellant. A. N. Gossett, for appellee.

HODGES, J.

The appellant, S. P. Jones, was the receiver of all the property of the Texas Southern Railway Company, having been appointed at the instance of the appellee on the 11th day of July, 1904. No compensation was fixed by the court for his services till on the 7th day of December, 1905, at which time, and during a special term, the court made an order allowing appellant the sum of $10,000, and directed that it be classed as court costs, and be placed in class A of the classification claims as fixed by the final judgment of the court. It was also provided in said order, "said allowance being superior to the mortgage bonds, that said receiver pay the said allowance out of any money he may have on hand. In making said partial allowance herein, the rights of said receiver to the full amount of his claims are not passed upon and are in no way affected." In that order the court reserved the right to adjudge the above allowance against the corpus of the property or against the earnings of the receiver, as may be made to appear proper. It was proven on the trial of this cause in the court below that within 30 days after the above allowance was made the appellant, as receiver, had on hand money out of which this allowance could have been paid under the order of the court granting the same; that, on account of the physical condition of the property being bad at the time of the appointment of the receiver, it was necessary to expend large sums of money in improving the roadbed and equipment, and that appellant used the funds out of which his allowance could have been paid in making the aforesaid improvements. The gross earnings of the road were used in paying operating expenses and improvements. It was also shown that no part of this allowance was appropriated by the appellant until at a date not specified, but during the year 1906, when another order was made allowing payment to be made in the sum of $2,000 per month. Under this last mentioned order all of the allowance was paid, except $4,000. It was further shown that during every 60 days after said allowance was made there were funds in the hands of the appellant, subject to be appropriated by him for said allowance, but that on account of the bad physical condition of the property in his custody the funds were used by him in making permanent and necessary improvements, instead of paying the allowance, so that the road might be kept as a going concern, and be operated with reasonable dispatch for the benefit of the public. It was ascertained that the earnings of the road above operating expenses amounted to the sum of $4,000 per month. On the _____ day of May, 1907, appellant filed an application in the district court for interest on the allowance theretofore made to him on the 7th day of December, 1905. He set forth in his application the reason why said allowance had not been paid out of the funds in his hands that might have been so applied, which were the facts above enumerated as to the physical condition of the property. On the 27th day of June the court refused the application. From that order of refusal, the appellant prosecutes this appeal.

Appellant, by appropriate assignments of error, challenges the correctness of this order refusing to allow interest, claiming that the order made on the 7th day of December, 1905, was a final judgment within the meaning of article 3105 of Sayles' Revised Civil Statutes, providing the rate of interest that final judgments shall bear. If the judgment of that date comes within the class referred to in article 3105 of Sayles' Revised Civil Statutes, then 6 per cent. interest would follow as a legal consequence, and no further order of the court would be necessary to authorize its collection or retention out of the assets of the company then in the hands of the receiver. A judgment creditor is never required to apply to the court rendering the judgment for an additional decree to enable him to collect interest on a judgment rendered in his favor. The interest is as much a part of the judgment as the principal sum, and its collection is enforced by the same means. If the appellant had alleged and shown that he was no longer receiver of the company, and that the funds out of which the payment of the allowance could have been made were in the hands of another person as receiver, and that the latter had refused to pay him interest on the order of allowance, a different case would have been presented. But no such allegations and proof are in the record. For aught that the record shows to the contrary, appellant is still the receiver, and has control as such, of the funds available for the payment of his allowance made in December, 1905. The order of December 7, 1905, either was such a judgment as is intended by the provisions of article 3105 to bear interest from its date, or it was not. If it was, then the appellant has not alleged facts which entitle him to relief, in that he has not shown that he was in any way prevented from the retention or the collection of the interest when attempted through the proper channel. If it was not such a judgment, then the appellant is in effect appealing merely from an order refusing an additional allowance applied for in the way of interest. If the latter be the case, the appellant has still failed to show that he is entitled to any relief by failure to allege and prove that the court abused its discretion, and made an inadequate allowance in the first instance. No complaint is made whatever of the insufficiency of the $10,000 being inadequate compensation; and in the absence of this, we must assume that it was sufficient. Article 3105 of Sayles' Revised Civil Statutes provides: "All judgments of the several courts of this State shall...