Andrews v. Archer County , 45 S.W.2d 227 ( 1931 )

On Motion for Rehearing.

Upon a further examination of the record, we find that plaintiff did execute and file the bond for $25,000, required by the court as a condition precedent for the issuance of the writ of injunction sought, and the same was duly approved. And we will add that, although fhe record fails to show that a writ of injunction was thereafter issued, that fact is immaterial, since the injunction granted by the court was nevertheless effective, if appellants had notice of it, which they do not deny. ' Accordingly, the statement made, through oversight, to the effect that the bond was never executed, and the assignment of the supposed failure of plaintiff to execute and file the bond as an additional reason why plaintiff did not show sufficient grounds for the issuance of the writ, are withdrawn from our original opinion. '

In its motion for rehearing, appellee complains of our failure to discuss the decision of the Court of Civil Appeals in Byrne v. First National Bank of Lake Charles, La., 20 Tex. Civ. App. 194, 49 S. W. 706, cited in appellee’s briefs, and in which case a writ of error was denied by our Supreme Court.

We examined and duly considered the decision, but did not discuss it, because we believed it to be plainly distinguishable from the case presented to us by this appeal in these particulars. In that case the appointment of a receiver of the assets of an insolvent partnership, at the suit of a simple contract creditor, was affirmed. But that receivership did not involve the individual property of the members of the partnership firm nor of any other person, and it appeared that one of the partners had died and all the assets of the firm were in the possession and control of the surviving partner, who was wasting them, and who was colluding with another to defraud the creditors of the firm, and also the estate of his deceased partner, by appropriating the assets to his own use. The decision was based on the conclusion reached, that the surviving partner held the assets as a trustee for the benefit of creditors and others interested therein, and that therefore the creditors had an “equitable or quasi lien” upon the assets, which would warrant the appointment of a receiver; and the court' further held that, in the absence of a statement of facts in the record, it would be presumed that there was sufficient proof to sustain all the allegations in plaintiff’s petition for a receivership.

In this case the plaintiff was given the full benefit of that decision in that all the assets of the bank were placed in the hands of a receiver, and no complaint has been made of that action of the trial court.

The only appeal which has been prosecuted, and which we have considered, was for the appointment of a receiver of the individual property of certain persons who were members of the partnership bank, and of others who were outsiders and in no manner connected with the bank or the transaction of any of its business, and our disposition of the appeal related to them only. So far as they were involved, the action against them for the appointment of a receiver of their property was separate and distinct from that for a receivership of the assets of the firm, and if it can be sustained, then it would follow that, in a suit by a simple contract creditor, a receiver could be appointed to take charge of the property of any one who has failed to pay his debts and is insolvent; notwithstanding the well-established rule of equity to the contrary, discussed in our original opinion. We do not believe that the decision referred to above could be construed as going to that extent. And in addition to the authorities already discussed in our original opinion, we will cite also 1 Clark on Receivers, § 202.

With the correction of the error in our original opinion noted above, the motion for rehearing is overruled.