Lauraine v. Ashe

• Decision Date: 07 February 1917
• Docket Number: (No. 2794.)
• Citation: 191 S.W. 563
• Parties: LAURAINE v. ASHE et al.
• Court: Texas Supreme Court

191 S.W. 563

LAURAINE v. ASHE et al.

(No. 2794.)

Supreme Court of Texas.

February 7, 1917.

Original petition for mandamus by W. V. Lauraine against Chas. V. Ashe and others. Mandamus refused.

Cooper & Merrill and Jno. G. Tod, all of Houston, for plaintiff. Williams & Neethe, of Galveston, for defendant Ashe. Gill, Jones & Tyler and H. N. Atkinson, all of Houston, for defendant Kittrell.

PHILLIPS, C. J.

This proceeding has for its purpose the issuance of a writ of mandamus directing Honorable Chas. E. Ashe, Judge of the District Court for the Eleventh Judicial District to vacate as to the property of Mrs. Margaret E. Allen a receivership pending in that court and order the delivery of such property into the hands of the relator as administrator of her estate.

The receivership is an incident of a suit originally filed in the District Court of Harris County in December of the year 1908 by the First National Bank of Whitney, Texas, in the lifetime of Mrs. Allen and against her and A. C. Allen, her son. In that suit the plaintiff asserted the ownership of a judgment against Mrs. Allen and A. C. Allen in an amount in excess of $7,000.00, and constituting a lien upon their real estate situated in different counties in the State. It was also there pleaded that Mrs. Allen and A. C. Allen were variously indebted to other persons in large amounts, such indebtedness being in some instances secured by mortgage liens upon their property and having in others been reduced to judgment with the judgments operating as liens upon their real estate; that the amounts of such indebtedness so secured consisted largely of grossly usurious interest, causing the property to appear incumbered for a much larger amount than the actual indebtedness, which tended to depreciate its value. Further, that the various creditors of the Allens were threatening to proceed against their property for the enforcement of their claims, through foreclosure sales, levying of execution, etc., which, if permitted would result in its sacrifice, whereas its actual value was more than double the amount of the entire lawful indebtedness against it; further allegations being made with respect to the necessity for the appointment of a receiver for the preservation of the property pending the establishment of the claims to which it was lawfully subject. The prayer was for the appointment of a receiver and an order directing the presentment by all creditors of the Allens of their respective claims for adjudication by the court; that the court determine and adjudge the amounts really due upon such claims, and thereafter under its direction so much of the property be sold as should be necessary for their payment.

Upon this prayer a receiver was duly appointed. He qualified, and took into possession certain real and personal property belonging to Mrs. Allen and A. C. Allen for the purpose of preserving it. This suit, with the receivership yet in force, is now pending.

Some years after all of these proceedings Mrs. Allen died. The relator was appointed temporary administrator of her estate by the County Court of Harris County and duly qualified as such. Later, he was appointed and qualified as permanent administrator. This appointment was contested, and the contest is now pending in the District Court on appeal, as yet undetermined, the County Court having continued the powers of the relator as temporary administrator in the meanwhile.

Before resorting to this court the relator, as temporary administrator of Mrs. Allen's estate, presented a motion in the District Court suit reciting the probate action of the County Court and upon various grounds asserting that as to the property of Mrs. Allen the receivership should be vacated and the property delivered into his custody. This motion was considered and overruled, the court being of the view that since it had acquired jurisdiction of the property in the lifetime of Mrs. Allen, it was entitled to hold the possession through its receiver. No attempt to appeal from this order was made.

The answer to the petition for mandamus, filed by the receiver alone, states that in the District Court suit various interventions have been filed by creditors of Mrs. Allen and A. C. Allen, seeking the establishment of debts and mortgage liens against the property held by the receiver. It also appears that prior to the death of Mrs. Allen various controversies were pending in relation to different claims involved in the suit.

We are of the opinion that the writ should be refused. As to claims in suit at the time of the death of a defendant, the action does not abate upon his death. If administration be regularly had upon his estate, his administrator may be made a party and the suit be prosecuted to judgment, the proper practice in such cases being to certify the judgment to the probate court to be paid in the course of the administration. Article 1888, Revised Statutes; Boone v. Roberts, 1 Tex. 149; Low v. Felton, 84 Tex. 378, 19 S. W. 693. Where such a suit involves liens upon property given to secure the indebtedness sued on, this is likewise the rule. The death of the defendant pending the suit does not abate it and require, in the event of administration, a new proceeding upon the claim in the probate court. The administrator may be made a party and the cause proceed to judgment establishing the debt, and the lien as an incident of it, the judgment to be certified to the probate court and there executed through a sale of the property.

It is furthermore essentially true that when a court of equity in a cause of which it has jurisdiction takes possession of property through a receiver, the property is withdrawn from the jurisdiction of all other courts; and so long as its jurisdiction of the cause subsists, the court has the power, whether rightfully or wrongfully exercised, to continue the receivership. The power of the court to appoint the receiver proceeds from its jurisdiction of the cause and is an element of it. Jurisdiction of the property lawfully acquired may be maintained and exerted as a means of aiding and completing the exercise of its jurisdiction over the cause and giving effect to its judgment upon the rights involved. While the jurisdiction of the...