Myerscough v. Garrett

• Decision Date: 28 January 1932
• Docket Number: No. 1219.,1219.
• Citation: 45 S.W.2d 1003
• Parties: MYERSCOUGH et al. v. GARRETT.
• Court: Texas Court of Appeals

45 S.W.2d 1003

MYERSCOUGH et al. v. GARRETT.

No. 1219.

Court of Civil Appeals of Texas. Waco.

January 28, 1932.

Appeal from District Court, Hill County; Walter L. Wray, Judge.

Action by Charles A. Garrett against Joseph Myerscough and another. From an interlocutory order appointing a receiver on an ex parte application, defendants appeal.

Order set aside, and case remanded.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellants.

Frazier & Averitte and Collins & Martin, all of Hillsboro, for appellee.

ALEXANDER, J.

This is an appeal by J. M. Myerscough and John F. Merrick from an interlocutory order entered by the district court in Hill county appointing a receiver to take charge of certain oil leases and personal property in connection therewith in Rusk county on the ex parte application of Chas. A. Garrett. The appointment was made without notice to the defendants. The plaintiff in his original application for a receiver alleged in substance that he was the owner of certain undivided interest in certain oil leases in Rusk county, he having purchased same from the defendants, and in the alternative he alleged that he had a lien on said property to secure certain indebtedness due him by the defendants. The petition then alleged as follows:

"Plaintiff further alleges the said Joseph Myerscough and John F. Merrick have failed and refused and still refuse to recognize the rights of this plaintiff in any manner whatever in the management and control of the said lease premises; and he further alleges at this time that there is an oil well upon each of said leases, and that there is being mined and sold from the said leases the said oil; and that the defendants and each of them refuse to recognize plaintiff's rights to participate in the management and sale of the said oils that are received from the said wells or to permit him to direct the disposition of his interest in the said wells. He further alleges that the defendants have heretofore wasted and destroyed and removed from the said premises and the said wells certain oils produced thereon and have made no accounting to this plaintiff for the same, and also they have removed properties belonging to the leases and a part of the same without the knowledge or consent of plaintiff and against his wishes and against his interest. He further alleges that the defendants are at this time wasting and dissipating the oils and properties upon the said leases which at this time belong to plaintiff. Plaintiff alleges that the property consists of the producing wells upon the said leases, together with the said leases and buildings and equipment of various and sundry kinds, a better description of which he is not able to give; and that the reasonable value of the said property, including all the leases and the wells and the properties upon the leased premises, is $50,000.00; and that the interest owned, held and claimed by plaintiff herein is of the reasonable value of $20,000.00; and that his interest in the same is being ignored and disregarded, and that he is thereby being damaged, and that he will continue to suffer such damages and injuries unless and until a receiver is appointed and placed in charge of the property to manage and control the one-sixth interest owned by this plaintiff in the Thompson well and the 43/96 interest in the Thompson well and lease and the 14/32 interest in the Cooper well and lease, all of which this plaintiff here and now alleges the legal title of which is in him, and that the damages which plaintiff will sustain or suffer will be irreparable loss to him; and the conditions of the property at this time are such as to necessitate and require the immediate appointment of a receiver, for the reason plaintiff will continue to suffer irreparable loss if such appointment be delayed until notice to defendants and a full hearing may be had."

The appellants, defendants below, here contend that the petition does not allege facts showing such an immediate and pressing necessity for the appointment of a receiver as to authorize such appointment without notice to them. In passing on the validity of the order appointing the receiver, we are confined to the facts alleged in the petition, as no facts, other than those alleged in the petition, could be properly established, or, if proven, relied upon as grounds for granting the receivership. Delcambre v. Murphy (Tex. Civ. App.) 5 S.W. (2d) 790, 791. As a general rule in order to entitle a plaintiff to the appointment of a receiver upon an ex parte hearing, the petition must not only allege facts sufficient to authorize the appointment of a receiver by an interlocutory order prior to a hearing on the merits, but must go further and show that there is no other remedy which will protect the plaintiff and that there is such a pressing necessity for haste in making the appointment that the plaintiff will likely suffer irreparable loss if the appointment is delayed until notice can be given the defendants and a full hearing had. The plaintiff must allege, not conclusions, but facts showing affirmatively and clearly, not only the irreparable injury that will be sustained, but the pressing necessity which renders it dangerous to delay until the defendants can...