Stephenson v. Kirkham

• Decision Date: 08 June 1927
• Docket Number: (No. 7829.)
• Citation: 297 S.W. 265
• Parties: STEPHENSON et al. v. KIRKHAM.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

297 S.W. 265

STEPHENSON et al. v. KIRKHAM.^*

(No. 7829.)

Court of Civil Appeals of Texas. San Antonio.

June 8, 1927.

Rehearing Denied July 2, 1927.

Appeal from District Court, McMullen County; T. M. Cox, Judge.

Suit by T. P. Kirkham against W. M. Stephenson and others for injunction. From an interlocutory order granting an injunction, defendants appeal. Injunction set aside.

Douglas & Carter, of San Antonio, for appellants.

M. A. Childers, of San Antonio, for appellee.

FLY, C. J.

This is an appeal from an interlocutory order, issued by the judge of the Thirty-Sixth judicial district of Texas, restraining and enjoining W. M. Stephenson, Donald Stephenson, L. A. McCollister, H. G. Evans, "and other certificate holders of the Grubstake Investment Association, their agents and representatives," from holding an annual stockholders' meeting of the Grubstake Investment Association on June 1, 1927, in room 615, National Bank of Commerce Building, or at any other time or place. They were also enjoined from any stockholders' meeting at any time or place to elect trustees or for any other purpose. The application for the injunction was applied for by T. P. Kirkham, describing himself as trustee for the association and plaintiff in a certain suit brought by him against the association and the other appellants on this appeal.

The application alleges that, after a verdict was returned in the case, appellants began to conspire for the purpose of avoiding the force and effect of the verdict, and had called the meeting on June 1, 1927, to elect trustees and transact other business. The gist of the petition seems to be that appellants are conspiring to destroy a judgment rendered by the trial court, which is contained in a printed booklet of 26 pages and attached as an exhibit. The court must have thought that the proceeding was instituted to protect the court from an attack about to be made on his judgment rendered on January 26, 1927, for, as the reasons for granting the temporary injunction, it is stated:

"The court duly considered said pleadings and said oral testimony, and, after hearing argument of counsel thereon, and being of the opinion that the law is with the plaintiff thereon, and that said temporary injunction should issue as prayed for, and it appearing to the court that said call for a stockholders' meeting was issued by the said W. M. Stephenson and Jas. K. Naylor after the verdict had been returned in this cause on which W. M. Stephenson was removed as president, trustee, and general manager of the Grubstake Investment Association, and it further appearing from the evidence that said meeting has been called for the purpose of interfering with the jurisdiction of this court in the determination of the questions reserved for consideration by its decree entered herein at the January term of Court, 1927, and for the purpose of unlawfully setting aside said decree and avoiding the consequences thereof."

It appears from the judgment that all trustees had been removed but Kirkham, and, as he lived at a great distance, the court appointed a receiver to take charge of the property and affairs of the association. There were no measures taken to protect the receiver but to protect the court. The receiver, according to the original judgment in the case, was appointed, because Kirkham, the only trustee left after two trustees had been removed by the court, lived several hundred miles from the properties of the association. Still it is the trustee, and not the receiver who displaced him and took charge of the properties of the association, who has instituted this suit and is complaining of the acts of appellants. He does not appear as a stockholder nor on the part of other stockholders to pray for an injunction, but in the capacity alone as trustee, a position from which he was to all intents and purposes removed when the receiver was appointed.

When the injunction was applied for, from the granting of which this appeal was taken, appellants objected to Judge T. M. Cox, judge of the Thirty-Sixth judicial district, sitting in the case on the ground of relationship to J. M. Teague, his father-in-law, who owns and holds certificates of beneficial interest in the Grubstake Investment Association, "a copartnership operating under a declaration of trust in the nature of a joint-stock association." That allegation in the answer was met by a general demurrer, which was sustained by the judge. That allegation was sworn to by one of the appellants, and its truth was admitted by the general demurrer. It must be treated in this court, therefore, as true. While the brief of appellee bases his attack on the allegations as to the disqualification of the judge on the ground that the answer was not verified by affidavit, still, as the record shows that the answer was sworn to, it must have been made through inadvertence, as seems to be conceded. Even if it had not been sworn to, if the judge was disqualified, it was sufficient to call his...