National Surety Co. v. David Castle Const. Co.

J. B. Cochran, receiver of the estate of David S. Castle, filed a petition in the receivership proceedings, praying that E. A. Laughlin be cited to appear and show cause why he should not be directed to return certain lumber and other property which he had taken from the possession of the receiver upon a certain block of land, and to also show cause why he should not be punished for contempt in tampering with property under control of the court. An order to show cause as prayed for was entered, and upon hearing thereof an order was then entered commanding Laughlin within ten days to return to the school building all lumber and other property removed by him from said school building on said block of land. From this order Laughlin has prosecuted this appeal.

It seems to me that the majority is in error in holding that an appeal does not lie from this order. Article 4644, R.S., gives a right of appeal to any party to any civil suit wherein a temporary injunction may be granted, refused, or dissolved. In my judgment, the order entered should be regarded as being a mandatory injunction, and the right to appeal from a temporary injunction of this nature has been expressly declared by the Supreme Court in Ft. Worth Imp. Dist. v. City of Ft. Worth, 158 S.W. 164, 48 L.R.A. (N. S.) 994. Ort v. Bowden, 148 S.W. 1145, was an appeal from an order refusing a temporary mandatory injunction, and in that case the Galveston court assumed jurisdiction of the appeal and passed upon the case upon its merits. So, also, in Townsite Co. v. McFaddin, 121 S.W. 717. The right of appeal from an order granting a temporary mandatory injunction was also recognized by the Texarkana court in Keasler Lbr. Co. v. Clark, 151 S.W. 345, though it was there held that the order could not be regarded as temporary. But it was there expressly held that an order to preserve property under the control of the court was interlocutory.

In the case at bar the proceedings instituted by the receiver against Laughlin should properly be regarded as a suit to recover possession of the property (Keasler Lbr. Co. v. Clark, supra) and to preserve the property under control of the court. However it may be viewed in this respect, though, is really immaterial. Certainly, by the institution of the proceedings against him by the receiver, he became a party to the original receivership suit and as a party had a right of appeal from any injunctive order of a temporary nature therein entered against him. In Keasler Lbr. Co. v. Clark, supra, the order was held to be permanent in its nature, because, when the property was delivered to Clark in pursuance of the court's order, the court lost further control over it. The reverse is true here, for certainly the court would have control of the property in the hands of its own receiver, and, tested by the rule announced in the case last cited, the order here must be treated as temporary in its nature. But, regardless of the correctness of the test there declared, that the order was temporary in its nature is relieved of any doubt by the Supreme Court in Ft. Worth Imp. Co. v. City of Ft. Worth, supra. Of necessity, the court did not and could not undertake to finally dispose of the issue of title and right of possession of the lumber and other property as between the receiver and Laughlin. In the absence of a final and absolute determination of the issues between the parties, the order would not be regarded as final, but temporary, under the authority last mentioned.

For the reasons indicated, I do not concur in the reasons assigned by the majority in refusing to dispose of this appeal upon its merits, although concurring in their action in so doing. The appellant seems to have an idea that if the order is not final, and not appealable, this court can and should set aside the lower court's order and dismiss the proceedings. He is therefore insisting that the order is one from which an appeal will not lie. In the light of this insistence, I do not feel impelled to dissent from the action taken by the majority, though not concurring in the reasons assigned.