East & West Texas Lumber Co. v. Williams , 71 Tex. 444 ( 1888 )

Gaines, Associate Justice.

The plaintiffs below, who are appellees here, brought this suit against the defendants, who are now appellants, alleging in their petition that the East and West Lumber Company was a corporation of which one Mings was secretary and one Lowe was general superintendent and manager; that defendants Brown, Boyd, Daniels, Barnwell, Warren & Son, Mings, Hawley & Heidenheimer, Burrige and Foggin, had eoch brought a suit against the company in an action of debt in the district court of Upshur county, and caused attachments to issue and to be levied upon the property of the corporation, which consisted of lands, saw mills, timber privileges, live stock, etc.; that they had procured orders for the sale of the property, and that the sheriff had advertised and was about to make the sale of the same. The plaintiffs also alleged that they were creditors of the corporation; that they had also sued out attachments from said court on their respective claims, which they had also caused them to be levied upon the property of the company, and that their attachments were subsequent to those of the defendants in this suit.

It is also alleged that the corporation began business with fifty thousand dollars capital, but that Lowe, “by reckless management, and misapplication of the effects of the corporation contracted large sums of indebtedness against it, which now exist, largely in excess of its assets; that said Lowe, in the management of the affairs of the corporation, has wrecked and rendered the same insolvent and diverted its money and effects to his own use and to the use and benefit” of Mings.

It was also averred that several of the defendants5 attachments were upon claims which were not just debts of the company, and that they were all sued out in collusion with Mings and Lowe for the purpose of wrecking the corporation and of fraudulently applying its assets to the payment of the claims of the plaintiffs in the attachment suits, who are defendants herein.

This is but a statement in general way of some of the more material allegations of the petition, but it is sufficient to show the nature of the action which is all that is necessary for the purpose of the opinion. The plaintiffs pray that a receiver should be appointed to take charge of and administer on the effects of the corporation; that the order of sale should be rescinded, and the sheriff ordered to turn over the property seized by him to the receiver; that Lowe and Mings should be enjoined from interfering with its business, and conclude their prayer as follows: “And upon final adjudication of matters and things set out in this bill, that your honor make such final orders touching the property of said corporation and the satisfaction of the legitimate indebtedness against the same as in good conscience and equity ought to be made,” etc. There was also a prayer for citation to the corporation and notices of the application to appoint the receiver to the other defendants. On the twenty-ninth of June, 1888, the judge of the district court at chambers made an order setting down the bill for a hearing at Gilmer on the fourth of July next thereafter, which was a day in the July term of the district court of Upshur county. The defendant answered, demurring, excepting and denying the equities of the petition in detail, and on the sixth of July the cause came on to be heard upon the petition and answers, and the court entered an order for the appointment of a receiver, and an injunction as prayed for rescinding the previous order of sale and directing that the costs of this proceeding so far as accrued be and the same are hereby taxed against each of the parties respectively for the costs incurred by each party for which the officers of the court may have their execution.” The defendants excepted and gave notice of appeal to this court. Ho further action was taken in the case during the term.

This brief statement of a very voluminous record is sufficient to show that this is an attempt to appeal from an interlocutory judgment of the court, which merely grants an injunction and appoints a receiver. The order makes no attempt to adjudicate or in any manner dispose of the main issues presented for determination. The gist of this litigation is found in the issues made by the allegations of fraud in the petition and the denials contained in the answers of the defendants. The property attached is the subject matter of the suit, and the question to be determined is what are the respective rights of the attaching creditors in that property? The steps already taken in the suit are strictly ancillary to the main proceedings, and merely intended to preserve the property in dispute pending the litigation. Whether the orders already made by the court are proper or not we can not decide; for we, without a final disposition of the case below, have no jurisdiction on appeal. It is argued that, because an order has been entered that each party shall pay his costs, this makes the judgment final. But the statute provides that costs may be given or refused, upon motion (Rev. Stats., art. 1434); and probably it was intended by the order to do me more than give the officers of the court execution for their costs against the parties who had incurred them respectively—a right which, the statute gives without an order.

Because there has been no final judgment in the court belews we are of opinion that this appeal should be dismissed^ and it is so ordered.

Dismissed.

Opinion delivered October 16, 1888.