Wood v. Hollander

• Decision Date: 22 April 1892
• Court: Texas Supreme Court
• Parties: WOOD <I>et al.</I> v. HOLLANDER <I>et al.</I>

19 S.W. 551

WOOD et al. v. HOLLANDER et al.

Supreme Court of Texas.

April 22, 1892.

Appeal from district court, Grayson county; H. O. HEAD, Judge.

Action by Henry Hollander, as trustee for the benefit of himself and other secured creditors of B. W. Gumport, against Wood & Lee and others on an injunction bond. Judgment for plaintiffs. Defendants appeal. Reversed.

Brown & Bliss and Sims & Wright, for appellants. Dudley & Moore, for appellees.

HENRY, J.

B. W. Gumport, a retail liquor dealer at Clarksville, Tex., executed a chattel mortgage upon his stock of merchandise, etc., to Henry Hollander, as trustee, to be disposed of for the benefit of the said Hollander and other specified creditors. Gumport was insolvent. The mortgage was duly filed, and Hollander took possession under it. Shortly afterwards, Wood & Lee and other unsecured creditors of Gumport sued out attachments against him; and also sued out against said Hollander and the officer who levied the writs of attachment, and all of the creditors who were secured by the chattel mortgage, a writ of injunction restraining them from further managing, controlling, or selling the property embraced in said chattel mortgage, and also prayed for and procured the appointment of a receiver, with power to take charge of and sell all of said property. The petitioners filed an injunction bond in the sum of $2,000. A receiver was appointed, who took possession of the property, and converted it into money. Upon a final hearing of that cause the injunction was dissolved, and the receiver was allowed to retain out of the proceeds of the property the expenses of his administration of it, and, in obedience to the judgment of the court, he paid the balance of said proceeds to said Hollander as trustee as aforesaid. The sum so paid by him was $2,181.55. The gross proceeds of the goods sold by him amounted to $3,040.30. The suit for an injunction and receiver was prosecuted in the district court of Red River county. The suit now pending was brought in the district court of Grayson county by Hollander, as trustee for the benefit of himself and the other secured creditors, against Wood & Lee and the other plaintiffs in the injunction suit, and their sureties upon the injunction bond, to recover as damages $3,068.45, of which amount $2,000 was predicated upon the injunction bond. The petition sets out the foregoing facts and proceedings, and charges that the property conveyed to the trustee, and subsequently turned over to and disposed of by the receiver, was of the value of $5,250. The petition charges that, after the payment to the secured creditors of the money turned over to the trustee by the receiver, there remained of said debts an unpaid balance of $4,000. The petition concludes by charging that, "by reason of the acts of the defendants in suing out said injunction, and having a receiver appointed, and taking said property from the possession of the trustee, and sold by the receiver at a sacrifice, and at great cost and expense, plaintiffs have been damaged," etc. The cause was tried without a jury, and judgment was rendered against the principals in the injunction bond and...