Lubbock Oil Refining Co. v. Bourn, 4738.
| Decision Date | 03 July 1936 |
| Docket Number | No. 4738.,4738. |
| Citation | 96 S.W.2d 569 |
| Parties | LUBBOCK OIL REFINING CO. et al. v. BOURN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.
Proceeding by D. F. Bourn against the Lubbock Oil Refining Company and others, wherein A. E. Patterson was appointed receiver of the Lubbock Oil Refining Company, to take charge of the assets and physical properties of the Corporation, and operate the business thereof, and wherein C. E. Maedgen and another intervened and filed motions to vacate receivership and discharge the receiver. From a judgment sustaining a general demurrer to the motions, defendants and interveners appeal.
Reversed and remanded.
Vickers & Campbell and Robt. A. Sowder, all of Lubbock, for appellants.
Lockhart & Brown, of Lubbock, for appellee.
On February 1, 1935, D. F. Bourn made application to the district judge of the Ninety-Ninth judicial district, in Lubbock county, to have a receiver appointed to take charge of all the assets and physical properties and operate the business of the Lubbock Oil Refining Company.
The applicant alleged:
That about February 1, 1934, he and A. S. Everest were engaged in the oil refining business in the city of Lubbock and owned a refinery and the equipment connected therewith. That he owned an undivided one-third interest and A. S. Everest owned an undivided two-thirds interest in such refinery and equipment. That about said date the Lubbock Oil Refining Company was duly and legally incorporated under and by virtue of the laws of the state of Texas for the purpose of conducting a general refinery business in said city, and all the assets of such corporation were furnished by him and A. S. Everest, and consisted of his one-third undivided interest and A. S. Everest's undivided two-thirds interest in the refinery and equipment owned by them prior to the incorporation of the Lubbock Oil Refining Company. That it was agreed that the corporation would issue to applicant, for the part of the assets he had conveyed to the corporation, 60 shares of the capital stock of the company. That such shares were never issued to him, but were issued to A. S. Everest, the president of the company, and, while applicant is not the record owner of any of said stock, in truth and in fact he is a stockholder, entitled to receive his shares, and to all the rights of any other stockholder of the corporation.
That, after the company was incorporated, it secured a permit to do business under its charter and to manufacture and sell gasoline, and did manufacture and sell gasoline until the 1st day of January, 1935, on which day the corporation was unable to secure another permit or to make bond therefor, and had not, since said time, been able to manufacture or sell gasoline or carry out the purposes of the corporation.
That the corporation is in arrears with the state of Texas for taxes; that the state is threatening to sue to collect said taxes; that the corporation has various and sundry other creditors, the indebtedness to whom it is unable to meet, on account of all of which it is not able to conduct the business for which it was organized.
That said company has a contract to furnish the city of Lubbock its fuel oil, which is a valuable contract, and will in all probability be abandoned unless some relief is granted, and the corporation, and especially the stockholders thereof, will suffer irreparable loss.
That the business of the Lubbock Oil Refining Company has been greatly mismanaged by A. S. Everest, C. E. Maedgen, and others claiming to be interested in the company, and on account of such mismanagement the corporation is in imminent danger of actual or impending insolvency. That, on account of such impending insolvency and mismanagement, the applicant is entitled to have a receiver appointed to take charge of the assets and physical properties of the corporation, and operate the business thereof.
He prayed that the corporation be cited, and upon a hearing a receiver be appointed to whom the assets and physical properties of the corporation should be delivered, and be operated by such receiver, under order of the court.
On the same day A. S. Everest, as president of the Lubbock Oil Refining Company, in writing waived the issuance and service of citation, and admitted "the substantial allegations of the petition."
A. E. Patterson, on the same date, was, by the judge of the district court of Lubbock county, appointed receiver of the Lubbock Oil Refining Company; he gave bond, which was approved, and took possession of the properties, the business of which he was still operating on May 1, 1936, when the Lubbock Oil Refining Company filed a motion with the court to vacate the receivership and discharge the receiver, alleging that the application for the receiver, and the answer of A. S. Everest, as president, were collusively made with intent to injure the holders of the majority of the stock of said corporation, and pleaded various other matters we deem unnecessary to set out. The corporation asked that the receiver be required to render an account for all of his transactions.
C. E. Maedgen and Mineola Richards filed a plea of intervention, asking that the receivership be vacated and the receiver be discharged on substantially the same allegations as contained in the motion of the Lubbock Oil Refining Company.
D. F. Bourn and the receiver urged a general demurrer to both motions, which the court sustained; they refused to amend, their motions were dismissed, and they appealed.
The appellants contend, by proper assignment, that to authorize the appointment of a receiver it is necessary that a suit be pending in which some relief is sought in addition to the appointment of a receiver, and, since the petition of D. F. Bourn shows that the sole purpose of the suit was the appointment of a receiver, the court was without jurisdiction to place the property of the Lubbock Oil Refining Company in a receivership, and such order was void.
We deem it unnecessary to pass on this assignment, since, in our opinion, the court was without jurisdiction for another reason which presents fundamental error apparent of record.
The petition for the appointment of a receiver contains no allegation of the amount for which the Lubbock Oil Refining Company was incorporated or the number of shares of the capital stock or the value of any share. Neither did it contain any allegation of the value of the property and assets of such corporation, or the value of appellant's interest, or probable interest, therein, by which the amount in controversy...
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