St. Louis Union Trust Co. v. Missouri Pac. Ry. Co.

LEVY, J. The appellees are various railway companies who furnished cars to the legally appointed and acting receiver of the Texas Southern Railway, to be used and transported by him in the necessary operation of the railway. The railway company owned no cars or equipment, and the receiver, in order to operate the railway, had to procure cars and equipment from other railway companies. Some cars were damaged, some were destroyed, and per di,em rental was charged for the úse of the cars; and these are the items that constitute the indebtedness in controversy. These appellees were present by motion asking the court to allow and classify their demands for payment out of the fund then before the court for distribution to creditors.' The railway properties had been sold under decree, and the fund of sale was to be distributed by the' court to the creditors of the receivership, and was the only fund to pay creditors. The fund was admittedly insufficient to pay all the creditors in full. The court audited and allowed appellees’ claims, and classified them as operating expenses of the receiver, awarding them a priority of payment before appellant’s certificates. Appellant was contesting the demands of appellees as to amount and priority of payment, and appeals from the order of the court allowing appellees’ demands. By the first assignment it is contended that the finding of the court that 25 cents' per day per car rental of the cars used by the receiver was owing by the receiver and was a just and reasonable charge was unsupported by the evidence and is excessive. We conclude that there is evidence to support the finding, and that the' amount is not excessive; and the assignment is accordingly overruled. [1] The second and tenth-assignments are to the effect that some of the items of the [347] appellee railway companies’ demands were incurred by tbe receiver more than two years before the motion was filed to have the demands classified and paid out of the fund to be distributed to creditors, and was therefore barred by the statutes of limitation. The indebtedness was incurred by the receiver as his necessary operating expenses, and upon their accrual he approved and audited the accounts as a just and proper charge. There were not funds sufficient to pay the accounts derived from operating of the road, and the same were carried over by the receiver until such time in the course of the receivership proceedings that a fund was available to pay his indebtedness. No fund to pay claims existed until the sale of- the properties under decree of the court. It is this fund that the creditors seek to have applied to their demands. The receiver having the authority to contract the debts as operating expenses, and the authority to audit and pay same out of the operating income, his audit and approval would so far conserve the rights of such creditors to payment in the due course of the receivership proceedings as to interrupt any running of the statute of limitation against the claims from the time of the audit and approval by the receiver to the time the court might thereafter direct the payment. The due course of the administration of the properties required, it plainly appears, the delay in payment. The assignments are overruled. [2] The third and fourth assignments are overruled. In the final order of distribution of the fund, on November 9, 190S, to creditors generally, the court, it appears, in computing and passing the amount to be paid to the Western Supply & Manufacturing Company, a judgment creditor of the receiver embraced in such order, added legal interest to the principal to the date of the order, and directed the receiver to pay such total amount. This order of classification and payment was appealed from by appellant, and finally determined. Union Trust Co. v. Railway Co., 126 S. W. 296. After the return of the mandate, and on the 20th day of May, 1911, the appellant filed a motion in the district court asking the court to preclude the receiver from paying the item of interest mentioned in the former order of general distribution. The court denied the motion. The overruling of the motion by the court involves the finding by the court that there was no fraud, accident, or mistake in the entry of the former order. In the absence of fraud, accident, or mistake, the former order of general distribution to creditors was entitled to remain a finality, for appellant and the Supply Company were both parties, among a number of others, to the former adjudication and appeal. The contest of amount payable and the calculation of interest could have there been raised in the former adjudication between the parties, which was not done. Besides, the court having made a final order of general distribution of the fund to all creditors on the basis of the proportionate share fixed and coming to each creditor, and there being neither fraud, accident, nor mistake in 'the entries, it was within the power of the court to refuse thereafter at this late date to disturb and unsettle the calculations and general distribution so previously made. The fifth and sixth assignments refer to objection made to the report of the receiver, as evidence. The assignments are overruled, for no bill of exception appears in this record; and besides, appellant itself, according to this record, seems to have offered the report in evidence. [3] The seventh, eighth, and ninth assignments', which relate to the introduction of evidence, are overruled, as no bill of exceptions appears in this record in respect thereto. The eleventh and twelfth assignments, which relate to contentions with respect to classification and payment of the certificates, are overruled. This question was finally adjudicated on the former appeal. Trust Co. v. Railway Co., 129 S. W. 296, writ of error denied. [4] The cross-assignments of error made by certain of the appellees, asking that their demands be raised in amounts against the receiver, are not considered, because no appeal was made by them from the judgment. The judgment is ordered affirmed.