Webb v. Allen

• Decision Date: 17 March 1897
• Parties: WEBB v. ALLEN et al.
• Court: Texas Court of Appeals

40 S.W. 342

WEBB v. ALLEN et al.

Court of Civil Appeals of Texas.

March 17, 1897.

Appeal from district court, Bell county; John M. Furman, Judge.

Action by Percy Allen and another against J. W. Webb. From an order refusing to discharge receiver, defendant appeals. Reversed.

On the 2d day of October, 1896, Percy Allen and Sam Allen, plaintiffs below, and appellees here, presented to the judge of the Twenty-Seventh judicial district, in chambers, their petition in this cause, praying for the appointment of a receiver to take charge of, manage, and control the property and business of the firm of J. W. Webb & Co., and praying for injunction restraining J. W. Webb, the appellant, from controlling, managing, or in any way interfering further with the business, property, or assets of said firm, or disposing of the same in any way; alleging in said petition that up to the 9th day of September, 1896, the plaintiffs and defendant had been partners in the lumber business at Temple, Tex., but that upon said date the partnership had been dissolved; then setting out the grounds for receiver and injunction. In this petition the plaintiffs also prayed that the property of the firm of J. W. Webb & Co. be applied to the payment of its liabilities, and that the affairs of said firm be properly settled up in accordance with law and equity. This petition was sworn to by Percy Allen, one of the plaintiffs below, on the 30th day of September, 1896, and to it was attached an additional affidavit of George W. Tyler, attorney for the plaintiffs, made October 1, 1896. On the 2d day of October, 1896, the judge to whom the petition was presented in vacation, and without notice to the defendant, indorsed upon the petition an order to the clerk of the district court of Bell county to issue the injunction as prayed for upon plaintiffs entering into bond in the sum of $2,500, conditioned as required by law; and also indorsed upon said petition an order appointing L. B. Menefee, of Tarrant county, Tex., receiver of the estate, choses in action, and property of every description belonging to said J. W. Webb & Co. enumerated in the petition, upon said receiver entering into bond as prescribed by the statutes in the sum of $5,000. The petition was filed in the office of the district clerk on October 6, 1896. Injunction was issued on the 6th day of October, 1896, and served on the 7th day of October, 1896. The citation issued on the 6th of October, 1896, and was served on the 8th of October, 1896. The receiver's bond was filed on the 9th day of October, 1896, and he qualified, and took possession of the property on that day. October 12, 1896, the defendant, J. W. Webb, filed an answer in the suit, consisting of general and special demurrers to the plaintiffs' petition, and on the same day filed a motion to vacate the receivership, discharge the receiver, and dissolve the injunction. On the 31st day of December, 1896, the judge of the Twenty-Seventh judicial district, at chambers, heard and overruled the motion to vacate the receivership, discharge the receiver, and dissolve the injunction, to which the defendant excepted, and gave notice of appeal to this court. On the 7th day of January, 1897, and in term time, the plaintiffs below filed a motion to have entered of record in the minutes of the court the order appointing the receiver and ordering the injunction, dated October 2, 1896, and the order overruling the motion to vacate the receivership, discharge the receiver, and dissolve the injunction; to which the defendant below, J. W. Webb, answered, objecting to the making of said entries for the reasons given in his answer and motion to dissolve. The court, on the same day, granted the motion, and directed the orders to be entered in the minutes of the court, and the clerk entered them in the minutes of the district court on the 7th day of January, 1897; to which action of the court ordering the entries to be made the defendant, J. W. Webb, excepted, and gave notice of appeal to this court.

Banks & Cochran, for appellant. Geo. W. Tyler, for appellees.

FISHER, C. J. (after stating the facts).

The jurisdiction of this court is invoked by virtue of the act of the called session of the legislature of 1892 (Laws 1892, p. 43), which authorizes an appeal from an interlocutory judgment or order appointing a receiver. One of the grounds urged in the court below for vacating the order appointing the receiver, and which was overruled, was to the effect that the appointment was made before the suit was filed. The record clearly shows that the petition for injunction and receiver was presented to the judge, and the orders made, before it was filed in the court below. Article 1465, Rev. St. 1895, is to the effect that any judge of a court of competent jurisdiction may appoint receivers in an "action * * * between partners." Article 1177, Id., states that all civil suits in the district and county courts shall be commenced by petition filed in the office of the clerks of such courts. The words "actions" and "suits" employed in these statutes, and in others where they are used, are synonymous and interchangeable terms. Black, in his Law Dictionary (page 27), states that the terms "action" and "suit" are now nearly, if not entirely, synonymous; and on page 1135 states that "`suit' is a generic term of comprehensive signification, and applies to any proceeding in a court of justice at the pursuit of the plaintiff for the redress of an injury or recovery of a right." If the term "action," as used in the statutes authorizing the court to appoint a receiver in partnership matters, means a suit,—which is evidently the case,— then, in applying the rule announced in article 1177, a suit or action can be only commenced by filing the petition with the clerk of the court. The statute, in stating that a receiver may be appointed in actions between partners, evidently means that this may be done in suits between partners; and, in order to determine when a controversy becomes a suit, we look to article 1177...