Weems v. Lathrop

• Decision Date: 01 January 1874
• Parties: M. L. WEEMS v. A. S. LATHROP.
• Court: Texas Supreme Court

42 Tex. 207

M. L. WEEMS

v.A. S. LATHROP.

Supreme Court of Texas.

1874.

APPEAL from Matagorda. Tried below before the Hon. Wm. H. Burkhart.

In the early part of the winter of 1858 Henry C. Manor and James A. Coker, as administrators of William Manor, brought suit against the heirs at law of their intestate, and others, supposed to be interested, to establish the rights of the parties in the hire of certain negroes named in the petition, of which their intestate died possessed, and for partition. In their petition the complainants asked that a receiver be appointed, “with all proper and necessary directions to take possession of the negroes, and hire them out from year to year until the termination of the suit.”

Before filing the petition it was presented to the judge in chambers for his order appointing a receiver as prayed for. The court in chambers made an order appointing John W. Brooks “receiver according to the prayer of the petition,” who, upon giving bond with surety, to be approved by the clerk of the county in which the suit was to be filed, in the sum of twenty thousand dollars, conditioned for the faithful discharge of his duties as receiver, was authorized to take into his possession the slaves named in the petition, and hire them out at public auction on the first Tuesday in January, 1859, for the term of one year, taking bond or note, and security for the hire, and to report his action in the premises at the next term of the District Court for Brazoria County.

The receiver gave bond, with John Jones and appellant as sureties, conditioned “faithfully to discharge the duties of receiver in said cause,” and payable to the District Court of Brazoria county, which was approved and filed in December, 1858.

At the next term, which was the April term, 1859, of the court for Brazoria County, the receiver made his report, showing that, pursuant to his appointment and qualification, he took possession of the slaves and hired them out at the time and in the manner specified in the judge's order made in chambers, and giving particulars of the amount for which each hired, to whom, and the names of the sureties by him taken to secure the payment of the hire at the end of the year 1859. The report was filed twelfth of April, 1859, and, the same day, was passed and approved by the court. No further order was then made as to the duties of the receiver; but, at the September term, 1859, of the court, the following order was made and entered in said cause by consent of parties: “This day came the parties, by their attorneys, and, upon agreement of parties, it is ordered by the court that the receiver, John W. Brooks, be required to hire out the negroes as before, on the first Tuesday in January, 1860, and report his action to the next term of this court.”

Under this order the receiver hired the slaves for that year, but made no report of hiring until the April term, 1865, when he reported a hiring for the year 1864, “and all parties to the suit being represented in court, and making no objection, the hiring (or report) was approved, and then, for reasons recited in the record, the parties agreed to a private hiring from year to year until further ordered by the court, and the receiver was to make report of the terms of hiring at the Spring term of the court each year.”

At the January term, 1871, it was made to appear to the court that the receiver, Brooks, had died; when an order was made appointing A. S. Lathrop “receiver as to all the property in controversy in said suit, upon his giving bond,” etc., which he did.

September, 1872, Lathrop, as receiver under the above appointment, instituted this suit against Weems as one of Brooks' sureties, on his bond given under the judge's order, made in chambers in December, 1858; alleging the death of Brooks, and that his wife is acting as his executrix; that his estate is insolvent, and that Jones, the other surety, is dead and insolvent, and making no one party defendant except Weems.

Brooks took possession of the slaves, and, on the first Tuesday in January, 1859, hired them out at the aggregate of six thousand dollars or more. At the October term, 1859, Brooks was ordered to hire out the slaves for the year 1860, the hiring to take place on the first Tuesday in January, 1860. Of the hiring Brooks made no report. Brooks continued to act as receiver until his death, in 1870.

After amendments to the pleading by both parties, the cause came on for trial on the seventh day of October, 1873. General and special demurrers were overruled as to so much of the petition as sought to recover the hire of said trust negroes for the years 1859 and 1860, the court restricting the plaintiff below from recovering of defendant anything for the hire of the slaves for the years 1861, 1862, and 1863. A verdict was rendered in favor of Lathrop, as receiver, for four thousand nine hundred and seventy-eight dollars, with interest at eight per cent. per annum, from the first day of January, 1860, and for four hundred and sixty-seven dollars, with eight per cent. per annum interest, from the first day of January, 1861, upon which verdict judgment was entered up for eleven thousand four hundred and four dollars and forty-one cents, and Weems appealed.

E. J. Wilson and Gray, Botts & Baker, for appellee, cited Williams v. Randon, 10 Texas, 74;Henderson v. Kissam, 8 Texas, 46; 1 Bland, 213; Edwards on Receivers, 2; Compton v. Bearcroft, 2 Bro. C. C., 158; Middleton v. Dodswell, 2 Dan. Ch. Pr., 1734; 13 Vesey, 266; Lloyd v. Passingham, 16 Id., 59; 4 Price, 346; 4 Paige, 574; Walker v. Wild, 1, Madd. Ch. R., 528; 1 Smith's Ch. Pr., 501.

Ballinger, Jack & Mott, for appellee, cited Wynn v. Lord Newborough, 3 Brown C. C., 88; Pitt v. Snowden, 3 Atkyn, 750; Brandon v. Brandon, 5 Mad., 473; Tillinghast v. Champlin, 4 Rhode Island, 173; Kerr on Receivers, 239; Edwards on Receivers, 485.

GOULD, J.

The first and principal question is, whether the appointment of Brooks as receiver expired at the next term of court after it was made. Ordinarily the appointment of a receiver continues during the pendency of the suit, until the decree is rendered. In the forms of such orders, at least in some of them, no time is expressed. (Edwards on Receivers, 563, 381-2;...