Waters-Pierce Oil Co. v. State

• Decision Date: 23 December 1907
• Citation: 106 S.W. 326
• Parties: WATERS-PIERCE OIL CO. v. STATE.
• Court: Texas Supreme Court

106 S.W. 326

WATERS-PIERCE OIL CO. v. STATE.

Supreme Court of Texas.

December 23, 1907.

Action by the state against the Waters-Pierce Oil Company. There was a judgment of the Court of Civil Appeals (105 S. W. 851) affirming an order appointing a receiver of the corporation, and it brings error. Heard on motion by the state for the appointment of a receiver, and on motion by the Waters-Pierce Oil Company for a recall of the mandate issued by the clerk of Court of Civil Appeals. Motion of the state overruled, and motion of the company granted.

N. A. Stedman, Cochran & Penn, Clark & Bolinger, and D. W. Odell, for plaintiff in error. R. V. Davidson, Atty. Gen., Jewel P. Lightfoot, Asst. Atty. Gen., Jno. W. Brady, Co. Atty., Allen & Hart, and Gregory & Batts, for the State.

BROWN, J.

In this opinion we will give our reasons for the disposition made on a former day of this term of a motion presented by the Waters-Pierce Oil Company on substantially the following statement of facts:

The Waters-Pierce Oil Company is a corporation created under the laws of the state of Missouri, which had been admitted by the authorities of this state to transact business in Texas under a permit duly issued. The state instituted suit in the district court of Travis county against the said oil company to forfeit its permit to do business in this state, and also to recover from it penalties for the violation of the anti-trust statutes of the state of Texas. Upon a trial in the district court the state recovered judgment for $1,623,000 as penalties, and declared the permit of the company to do business in this state forfeited. On a subsequent day to the judgment, and during the term, the judge of the district court, upon motion of the state, appointed Robert J. Eckhardt receiver for the said corporation. After a motion for new trial had been overruled in that proceeding, and also in the main case, the oil company gave notice of appeal in the original case, as well as in the proceedings for appointment of receiver, and executed a bond in the main case according to law in double the amount of the judgment, and in the proceedings under the motion of the state for appointment of receiver a bond was given in the amount prescribed by the judge of the district court, conditioned as required by law for a supersedeas bond. Two records were filed in the Court of Civil Appeals—one embracing both the main case and the motion for the appointment of a receiver, and the other embracing only the proceedings upon the motion of the state for the appointment of a receiver. In the Court of Civil Appeals the Waters-Pierce Oil Company moved to consolidate the cases, which motion was by that court denied, and the judgment of the district court, appointing a receiver, was affirmed. Motion for rehearing of that judgment in the Court of Civil Appeals was filed in due time and by the court overruled. On the same day a mandate was issued by the clerk of the Court of Civil Appeals and transmitted to the clerk of the district court of Travis county, Tex. The judge of the district court entered an order directing Eckhardt to proceed as receiver to discharge his duties. The Waters-Pierce Oil Company filed in the Court of Civil Appeals and presented to this court within the time prescribed by law a petition for writ of error, which is now pending before this court. The Waters-Pierce Oil Company filed in this court a motion setting up the facts before stated and praying that this court enter an order directing the clerk of the Court of Civil Appeals to recall the mandate sent by him to the clerk of the district court, and also directing the judge of the district court to vacate an order which he had entered upon receipt of that mandate directing the receiver to take charge of the property. At a former day of this term, on hearing the motion, this court directed the clerk of the Court of Civil Appeals to recall the mandate sent down by him to the district court, and also directed the honorable judge of the district court to set aside the order made by him upon receipt of the said mandate.

After this court granted the motion to recall the mandate issued by the Court of Civil Appeals to the district court, the state of Texas, by her Attorney General, filed in this court a motion reciting the facts before stated and added the following grounds upon which the motion rested: (1) That it was adjudged by the district court that the Waters-Pierce Oil Company was conducting its business in violation of the law, and that the said judgment canceled the permit of the company to do business in this state. (2) That judgment had been entered in favor of the state of Texas against the said company for $1,623,000. (3) That the state has a lien upon all of the property of the said company within this state to secure payment of the said judgment. (4) That conducting the business of the Waters-Pierce Oil Company by that company or its agents in the state would be in violation of the penal laws of this state. (5) That in a proceeding in the United States Circuit Court, wherein Bradley W. Palmer, one of the stockholders of the company, was the plaintiff, C. B. Dorchester was appointed receiver for the said company and took possession of the property, and that upon appeal by the state the Circuit Court of Appeals of the United States decided that the Circuit Court did not have jurisdiction and ordered the Circuit Court to discharge the receiver. (6) The motion sets out the facts of the proceeding of the Circuit Court of the United States, which are not necessary to this statement. It is alleged in the said motion that the property, while in the hands of Dorchester and under the orders of the Circuit Court of the United States, was applied to the payment of the expenses of that administration and the debts contracted by the receiver, and the other property or proceeds thereof would be hereafter so applied, to the detriment of the state and the impairment of its lien; that in case the property should be returned to the possession of the Waters-Pierce Oil Company it would be liable to be wasted or removed from the state. The motion also set up that the judge of the Circuit Court of the United States had declared that he would discharge the receiver in accordance with the mandate of the Circuit Court of Appeals of the United States, and that in case he should do so there is no person to receive the property and take control of it and transact the business, as the operation of the business by the Waters-Pierce Oil Company in this state would be unlawful. The motion concludes then in the following language: "That it is necessary, for the preservation of the property of the Waters-Pierce Oil Company, for the preservation of the security of the state of Texas, for the prevention of the violation of the laws of the state of Texas, for the safety of the persons in charge of the property of the Waters-Pierce Oil Company, and for the prevention of the conduct of a business in violation of the laws of the state, that the property and business of said Waters-Pierce Oil Company be taken into actual control of this court. Wherefore the state of Texas prays that this court revoke the order recalling the mandate of the Court of Civil Appeals, or direct that Robert J. Eckhardt take actual and physical possession of the property of the Waters-Pierce Oil Company and conduct the business of said corporation under such orders as this court may make pending the final disposition of this cause in this court, and for general relief."

On the hearing of the motion of the Waters-Pierce Oil Company to recall the mandate of the Court of Civil Appeals from the district court it was objected by counsel for the state that if the Waters-Pierce Oil Company be correct in its contention that this was not an independent suit but only an incident of the main controversy, a writ of error could not be separately prosecuted, and therefore the case was not properly before this court. It is sometimes the case that there may be more than one appeal in the same case, when orders are made at different times which finally dispose of the subject-matter of that particular order. A familiar instance is a case of partition, wherein there may be a decree which determines the rights of the parties in the property and is a final judgment upon the merits of the case. From this an appeal may be taken, leaving the case before the court for the purpose of actual division of the property among the claimants according to the decree entered. When the partition shall have been made and the decree of partition entered, there is another final judgment or order, from which an appeal may likewise be taken. White v. Mitchell, 60 Tex. 164; Moor v. Moor (Tex. Civ. App.) 63 S. W. 347. The order appointing the receiver, although made subsequently to the date of the judgment, but at the same term, might have been reviewed in the appeal of the principal case. The parties have treated this as a separate proceeding, presenting separate records to the Court of Civil Appeals, and that court has passed upon it as a separate and distinct case from the main suit; but the separation of the two cannot deprive appellant of the benefit of a review of the order. This court has jurisdiction of the case as it is presented.

It is also objected by the state's counsel that this court has no jurisdiction of this branch of the proceeding, because the order appointing the receiver is an interlocutory order, and this court has jurisdiction only of final judgments of the Court of Civil Appeals. If this be an interlocutory order, then the objection is well taken; for this court has no jurisdiction to review such an order of the district court and of the Court of Civil Appeals. Mr. Freeman defines an interlocutory judgment in the following language: "An interlocutory decree is one made pending the cause and before the hearing on the merits." Freeman on Judgments, § 29. This...