Mitchell v. Hancock

• Decision Date: 17 March 1917
• Docket Number: (No. 8533.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 196 S.W. 694
• Parties: MITCHELL et al. v. HANCOCK.
• Court: Texas Court of Appeals

196 S.W. 694

MITCHELL et al. v. HANCOCK.

(No. 8533.)^*

Court of Civil Appeals of Texas. Ft. Worth.

March 17, 1917.

Rehearing Denied May 5, 1917.

Appeal from District Court, Baylor County; Jo. A. P. Dickson, Judge.

Action by W. L. Hancock against the Commonwealth Bonding & Casualty Insurance Company, to which J. W. Mitchell, receiver for defendant, was made a party defendant by amended petition. From judgment for plaintiff, defendants appeal. Affirmed.

Ocie Speer, of Ft. Worth, for appellants. James A. Stephens, of Benjamin, C. D. Russell, of Plainview, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.

CONNER, C. J.

This suit was originally filed in the district court of Dawson county on September 7, 1912, by the appellee, W. L. Hancock, against the Commonwealth Bonding & Casualty Insurance Company, to cancel a certain subscription contract and certain notes, and a certain deed of trust upon land in Dawson county. Said instruments were alleged to have been executed for stock thereafter to be issued in said company upon certain representations not necessary to set out, which were alleged to be false and to have been fraudulently made. Later, the suit by agreement was transferred for trial to Baylor county, Tex., from the district court of which latter county the case has been brought to this court. After the cause had been pending in the district court of Baylor county for some time, the plaintiff in the suit, Hancock, on January 15, 1916, filed an amended petition, in the first count of which the plaintiff reiterated the original grounds of the action, and, among other things, further alleged that the appellant J. W. Mitchell had been, by order and judgment of the district court of Tarrant county, appointed receiver of the Commonwealth Bonding & Casualty Insurance Company and its property and assets, and that such receiver had been duly qualified and was acting as such receiver under the orders of the said district court of Tarrant county, and the prayer was, in effect, for a rescission and cancellation of said stock subscription contract, notes, etc., as against both said Bonding Company and its said receiver.

The petition contained a second count in which, in substance and in so far as necessary to here state, it was alleged, as against both said Insurance Company and its said receiver, that on or about the 31st day of July, 1913, there was pending in the district court of Baylor county, Tex., the cause of E. P. Bomar v. John Scharbauer et al., in which at said time Bomar was plaintiff and the Commonwealth Bonding & Casualty Insurance Company and one R. T. Stuart were defendants, and in which said E. P. Bomar sought a cancellation of a certain subscription contract, notes, and deed of trust executed by him for stock in the Commonwealth Bonding & Casualty Insurance Company, which said subscription contract was substantially like the contract which the plaintiff in this suit sought to have canceled; that on said day of July in said cause judgment was duly rendered in favor of the plaintiff, E. P. Bomar, canceling his said subscription contract, notes, and securities therefor, and for all moneys paid by said Bomar to the promoters of said corporation at the time of the execution of his said subscription contract. It was further alleged that after the trial and judgment, "in order to save the costs and expenses of numerous trials of causes involving the same issues, the attorneys for the plaintiff herein," and the attorneys, naming them, for the Commonwealth Bonding & Casualty Insurance Company and said R. T. Stuart, and the attorneys representing various other parties having suits similar in nature against said insurance company, all of whom it was alleged were duly authorized to so do, entered into a certain contract and agreement by the terms of which it was agreed that this cause and certain other causes then pending against the defendants Commonwealth Bonding & Casualty Insurance Company and R. T. Stuart should abide the result of said cause of E. P. Bomar v. John Scharbauer et al. It was alleged that by the terms of said agreement this cause was to be continued until the final determination of the case of Bomar v. Scharbauer et al., and that in event the said judgment in favor of Bomar should finally be affirmed by the appellate courts of the state of Texas, then a like judgment should be rendered in this cause, and in each of the other causes referred to in said agreement, for the cancellation of the obligations given by the plaintiff in each of said causes, and for the recovery of all money paid by the plaintiffs to the Commonwealth Bonding & Casualty Insurance Company or for promotion fees; that in event said judgment in favor of Bomar should be reversed by an appellate court, then the agreement should not further affect the rights of the several plaintiffs in the causes mentioned, except in so far as the same provided for a continuance of said causes until a final disposition of the Bomar Case. It was further alleged that the said cause of said E. P. Bomar was, on appeal, duly prosecuted, presented to and determined by the Court of Civil Appeals for the Seventh Supreme Judicial District at Amarillo, Tex., which in all things affirmed the judgment below in favor of Bomar, but rendered judgment in favor of said R. T. Stuart on the cross-action which had been presented against him by the Commonwealth Bonding & Casualty Insurance Company; that the said judgment had been "finally determined by the appellate courts of this state," and that the plaintiff in this cause had in all things complied with the said agreement, by the terms of which it was alleged the plaintiff was entitled to judgment as prayed for. It was further alleged that said agreement had been duly signed by all the counsel named, and thereafter duly ratified and approved by resolution of the board of directors of the Commonwealth Bonding & Casualty Insurance Company, and had been also ratified and approved by said R. T. Stuart; that, acting under said agreement and by virtue thereof, this cause and other causes named therein were continued at each term of the court of the counties named in the agreement until after the final determination of said case of Bomar v. Scharbauer. Attached to this pleading was a copy of the agreement referred to which included some 23 cases, including the one under consideration, in which like complaints were made of subscription contracts, and 16 cases represented by counsel signing the agreement of parties in suits thereafter to be filed.

The receiver, J. W. Mitchell, answered for the company, pleading in abatement of the suit a judgment of the district court of Tarrant county dissolving the corporation. He also duly presented a plea of privilege under the statute to be sued in Tarrant county, Tex.; also presented various exceptions to the plaintiff's pleading; denied the validity of the agreement set up; alleged the agreement had been breached by the plaintiffs mentioned therein; that it had not been ratified and approved by R. T. Stuart, and had been promptly disaffirmed and repudiated by the Commonwealth Bonding & Casualty Insurance Company as soon as it had learned that the same had been approved by it through a misapprehension of fact. The receiver also pleaded in reconvention, seeking to recover against the plaintiff upon the note and securities described in his pleading. The court overruled the receiver's exceptions to the plaintiff's pleadings, sustained exceptions to the pleas in abatement and of privilege, and rendered judgment in favor of the plaintiff upon the agreement above described. Thereafter the receiver filed his motion for new trial, which was heard and overruled by the court, to which action both the receiver and the Commonwealth Bonding & Casualty Insurance Company excepted and gave notice of an appeal, and an appeal has been prosecuted to this court.

One or more of the closely contested questions presented before us is dependent upon whether the receiver has prosecuted an appeal from the judgment below. We hence deem it proper in the beginning to notice a suggestion made in behalf of appellee on the submission of this cause, to the effect that the record shows no appeal on the part of the receiver. This contention is based upon wording in the body of the appeal bond. The bond is in form such as would perfect an appeal, both for the receiver and for the Commonwealth Bonding & Casualty Insurance Company, unless the following wording requires a different conclusion. The bond, after reciting the proceedings and embodying the judgment, reads:

"Now, therefore, know all men by these presents, that we, Commonwealth Bonding & Casualty Insurance Company, acting by and through J. W. Mitchell, its receiver, defendant in the above numbered and styled cause, as principal, and the other signers hereto as sureties, acknowledge ourselves to be bound unto W. L. Hancock, plaintiff in said cause, in the sum of three hundred dollars," etc.

And it is thus signed:

"Commonwealth Bonding & Casualty Insurance Company, J. W. Mitchell, Receiver. Southern Surety Company, by Herman Gartner, Attorney in Fact."

While the obligatory words of the bond which we have quoted in form seem to apply alone to the appellant Commonwealth Bonding & Casualty Insurance Company, yet we have concluded that the receiver should not be denied a hearing before us. It is to be noted that the receiver is certainly a party to and bound by the bond; if not as a principal, certainly as a surety, and the record seems to demonstrate that it was the manifest purpose and intention of the receiver to duly prosecute an appeal from the judgment of the district court. As stated, he formally presented a motion for new trial, both for himself as receiver and for his codefendant. He likewise, for both, as stated, formally gave notice of appeal. At no time prior to the submission did appellee, by motion or otherwise, call...