Zanes v. Lyons

• Decision Date: 14 February 1931
• Docket Number: No. 10964.,No. 10968.,10964.,10968.
• Citation: 36 S.W.2d 544
• Parties: ZANES et al. v. LYONS et al. SOUTHWEST FREIGHT AGENCY et al. v. LYONS et al.
• Court: Texas Court of Appeals

36 S.W.2d 544

ZANES et al. v. LYONS et al.

SOUTHWEST FREIGHT AGENCY et al. v. LYONS et al.

No. 10964.

No. 10968.

Court of Civil Appeals of Texas. Dallas.

February 14, 1931.

Appeal from District Court, Dallas County; W. M. Taylor, Special Judge.

Suit by Effle C. Lyons against W. R. Zanes, the Southwest Freight Company, and others. From an interlocutory order appointing a receiver on an ex parte hearing, W. R. Zanes and the Southwest Freight Company, under its true name the Southwest Freight Agency, T. R. Rogers, and Walter Bockstahler separately appeal.

Order appointing receiver, in so far as such order affects the appellants, reversed and remanded, but otherwise not disturbed.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellants.

Thompson, Knight, Baker & Harris, of Dallas, for appellees.

JONES, C. J.

This is an appeal from an interlocutory order appointing a receiver, entered by a district court of Dallas county, upon an ex parte hearing. Appellee Mrs. Effie C. Lyons filed a suit in a district court of Dallas county, in which she sought to recover damages because of an alleged breach of a lease contract, alleging that the past-due rental under such contract amounted to $9,900, and in which other relief was sought. The petition named F. A. Gillette, F. M. Gillette, and V. M. Gillette, individually and as partners doing business under the trade-name of Nichols-Gillette Transfer & Warehouse Company, the wives of each of the individual defendants, the Nichols-Gillette Transfer & Warehouse Company, a corporation, W. R. Zanes, Seth Tate, T. R. Rogers, Walter Bockstahler, Electric Freight Agency, a corporation, and Southwest Freight Company, a corporation. The other appellee is the receiver, and the term appellee will refer to Mrs. Lyons.

The immediate appointment of a receiver, to be given very full powers in reference to the property of each of the defendants, was a part of the relief sought. The petition was presented to the judge of the district court and an order entered the same day of the filing of the petition appointing a receiver, with powers substantially as prayed for in the petition. Appellants W. R. Zanes and the Electric Freight Agency duly perfected an appeal from this order, and such appeal is docketed as cause No. 10964, and given the style as shown above. Later, appellants Southwest Freight Company, under its true name of Southwest Freight Agency, T. R. Rogers, and Walter Bockstahler perfected an appeal to this court, and it is docketed as cause No. 10968 and styled as shown above. The two appeals are from the same order and by codefendants in the suit filed by appellee, and will be treated in this opinion as though there were but one appeal. The term appellants will refer to the appellants in both of said causes.

The lease contract, which forms the basis of this suit, was entered into between appellee, as owner of a six-story warehouse building, located in the city of Dallas, and the Nichols-Gillette Transfer & Warehouse Company, a copartnership composed of F. A. Gillette, F. M. Gillette, and V. M. Gillette, as lessees. The lease was for a period of five years, beginning January 1, 1928. Under the terms of this lease, the building was to be occupied by the lessees as a warehouse and storage building, for their offices, and not otherwise. The consideration for the lease is named at $66,000, to be paid monthly in advance, the monthly installment being $1,100 with a provision that, if the lessees should default as to a compliance with any of the covenants mentioned in said lease, one being a prompt monthly payment in advance, the lessor could enforce the performance of the contract "in any mode or modes provided by law, and with or without declaring the lease forfeited, and with or without notice or demand, and with or without using force, may re-enter upon and resume possession of the demised premises and remove any and all persons and property therefrom without being deemed guilty of any manner of trespass or becoming in any wise liable for damages, without prejudice to any remedy she may have or arrears of rent or damage." The power to sublease was not conferred by the contract.

The allegations in reference to the responsibility of appellants under this contract are very lengthy, and we do not deem it necessary, for the disposition we shall make of this case, to give their legal effect, except to say that they are believed to be sufficient, as against a general demurrer, to form a basis for a final judgment in appellee's favor. Neither do we find it necessary to pass upon the sufficiency of the pleadings in reference to the existence of such extreme necessity as would warrant a court in appointing a receiver, without notice to these appellants, to take charge of their properties, for the reason that the case must be reversed on other grounds and such question cannot arise on a subsequent trial.

The petition for a receiver is signed by counsel as attorneys for appellee. The only verification it has is: "W. C. Chisum, Jr., being sworn, says on oath that he is the agent of Effie C. Lyons, complainant in the above styled suit, and has been authorized by said complainant to make this affidavit; that he has read the foregoing bill of complainant and that the allegations of fact therein made are true to the best of his knowledge, information and belief." It is signed by affiant and sworn to before a notary public.

The order of the court appointing a receiver contains the following: (1) "The petition of plaintiff, praying for the appointment of a receiver herein, and the proof supporting same, to wit, the verified pleadings of the parties, together with the statement of counsel presenting same, being this day presented to the court are duly considered, and it appearing that an immediate appointment of a...