Roberson v. Board of Insurance Com'Rs of Texas

• Decision Date: 14 April 1943
• Docket Number: No. 9371.,9371.
• Parties: ROBERSON v. BOARD OF INSURANCE COM'RS OF TEXAS et al.
• Court: Texas Court of Appeals

171 S.W.2d 542

ROBERSON v. BOARD OF INSURANCE COM'RS OF TEXAS et al.

No. 9371.

Court of Civil Appeals of Texas. Austin.

April 14, 1943.

Rehearing Denied May 5, 1943.

Appeal from Travis County Court; Chas. O. Betts, Judge.

Action by the Board of Insurance Commissioners of Texas and another, through the Attorney General, against Marvin Roberson and another, as surety on named defendant's fidelity bond, to recover an alleged shortage in the mortuary fund of Metropolitan Union, accruing during named defendant's incumbency as president thereof. Judgment was rendered against defendants in the justice court, and named defendant appealed to the county court at law. Defendants did not appear at trial, and judgment was rendered for plaintiffs against defendants and named defendant's sureties upon his appeal bond from the justice court, for defendant surety against named defendant, and named defendant appeals.

Affirmed.

Marvin Roberson and H. D. Payne, both of Fort Worth, for appellant.

Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, Wm. J. R. King, and Ocie Speer, Asst. Attys. Gen., for appellee.

McCLENDON, Chief Justice.

Acting through the Attorney General, the Board (Board of Insurance Commissioners of Texas) and Will G. Knox, in his capacities as Statutory Liquidator for the Board and as receiver of Metropolitan (Metropolitan Union, a local mutual aid association), brought this suit in the justice court against Marvin Roberson for $162.83, alleged shortage in the mortuary fund of Metropolitan accruing during the incumbency of Roberson as president of Metropolitan; and against Lloyds (Lloyds Casualty Insurer), surety on his fidelity bond. Roberson and Lloyds each answered separately, the former by general denial and the latter by general denial and plea over against the former for any sums it might be required to pay under the bond. Neither defendant appeared at the trial, and judgment was rendered against them. Roberson appealed to the county court at law, where upon a trial in which neither defendant appeared, but defaulted, judgment was rendered in favor of plaintiffs in their official capacity, "for the benefit of the creditors and policy holders of Metropolitan" against Roberson and his sureties upon his appeal bond from the justice court, and Lloyds for the $162.82; and Lloyds recovered over against Roberson such sums as it might pay in satisfaction of the judgment. Roberson alone has appealed.

Roberson's brief presents 9 points of alleged error. The first 8 of these assert the invalidity of Title 78, R.C.S., Vernon's Ann.Civ.St. art. 4679 et seq. (relating generally to the subject of insurance), and various articles of that Title as being violative of the following provisions of the Texas Constitution, Vernon's Ann.St.: Sees. 1, 13, 15, and 19 of Art. I; Sec. 1 of Art. II; Sec. 1 of Art. IV; and Sec. 1 of Art. V. We overrule these points for each of the following reasons:

1. The receiver sued in his capacity as such under an allegedly valid judgment of appointment rendered by the 53rd District Court of Travis County. That court had general jurisdiction of the subject matter (the appointment of a receiver), and the validity of its judgment could not be challenged except by a sworn plea to the effect that the receiver was "not entitled to recover in the capacity in which he sues" as required by Rule 93 subd. c, Texas Rules of Civil Procedure. There was no such pleading.

2. Since, as stated, the judgment appointing the receiver was one the subject matter of which was within the jurisdiction of the appointing court, the judgment of appointment could not be attacked in a collateral suit or proceeding of which this...