Robins v. Sandford

CONNER, C. J. This suit was instituted by J. W. Robins, as trustee of the, Owenwood pool No. 3, a trust estate, against W. G. Sand-ford, the Continental National Bank of Eort Worth, the Marfa State Bank of Marfa, and the Fidelity & Deposit Company of Maryland. J. W. Robins sued for the benefit of his trust association, and his complaint is set forth in a petition containing two counts. In the first count, it is alleged, in substance, that defendant W. G. Sandford, on the 13th day of May, 1926, by an order signed on that day and made in vacation without notice to the plaintiff by Hon. C. R. Sutton, judge of the Eighty-Third judicial district of Texas, was appointed receiver of all the properties of Owenwood pool No. 3 situated in Texas. It was alleged that the order appointing the receiver had been made in a suit purporting to have been theretofore filed by one C. B. Tandy against the plaintiff, Robins, and other as defendants, in the district court of Upton county, Tex., but which in fact had not been instituted until the day after the appointment. A copy of the order was attached as Exhibit A, and made a part of the petition. The order of appointment was as follows: “In the District Court of Upton County, Texas, Eighty-Third Judicial District. “G. B. Tandy v. Owen A. Wood et al. No. 83. “The petition filed herein, and praying, among other things, for the appointment of a receiver, having been presented to me, in chambers, on this, the 13th day of May, 1926, it is ordered, adjudged, and decreed that W. G. Sandford, of Eort Worth, Tarrant county, Tex., be, and he hereby is, appointed receiver of all of the assets and properties described in said petition, and of all other assets and properties belonging to, or standing in the name of, Owenwood pool No. 3, or in the name of J. W. Robins, trustee for Owenwood pool No. 3, or in the name of Owen A. Wood, trustee for Owenwood pool No. 3, and situate in the state of Texas, and of all other properties situate in the state of Texas, and belonging to the said Owenwood pool No. 3, or to the owners of interest or units therein and situate in said state; and, in addition to the powers conferred upon the receiver by statute, said receiver is now and here expressly authorized, empowered, and directed to take immediate possession and control of, and operate and manage all of, said properties. And I hereby fix the bond of the said W. G. Sandford, receiver, at the sum of $100,000, the same to be conditioned as required by law; this appointment [521] to take effect upon the execution and approval of said bond and the filing herein by said receiver of the statutory oath. O. R. Sutton, Judge, District Court, Upton County, Texas, S3d Judicial District.” It was charged that the defendant Sand-ford, on the day following the date of the order, qualified as such receiver by giving bond and taking the oath required, and thereupon immediately took possession of all of the properties of the association situated in Texas, which included $152,269.39 in cash, but of which amount, by the consent of plaintiff, $10,930.19 was paid out in liquidation of outstanding checks and obligations due ■ from said fund, leaving in the hands of Sandford the sum of $141,618.11; that said Sandford also took possession of certain oil-producing land described in the petition, and was appropriating the proceeds thereof; that of the moneys received he had placed in a special account in the Continental National Bank of Fort Worth, in his name as receiver, $141,-618.11; that of the moneys deposited with the Continental National Bank some $50,000 had been withdrawn and deposited with the Marfa State Bank of Marfa, Tex.; that said banks were to pay 3 per cent, interest on such deposits. Plaintiff therefore prayed to recover all sums of money that had been so deposited, with the 3 per cent, interest thereon, and all lands and properties that had. been taken into the possession of Sandford, praying for Judgment against the said Sandford and his surety on his receiver’s bond, to wit, the Fidelity & Deposit Company of Maryland. In the plaintiff’s second count it was) alleged, in substance, that, among other surveys of land taken into the possession of Sandford as receiver, was) one of 160 acres located in Upton .county, then under lease by the association for the purpose of developing the oil therein contained; that the lease at the time it was taken into Sandford’s possession was of the reasonable cash value of $80,000, and that Sandford, by a negligent failure to pay the rentals due by the terms of the lease, had permitted the lease to lapse, and thereby become wholly lost to the association, and he prayed for judgment against Sandford and his surety, the Fidelity & Deposit Company of Maryland, in, the sum of $80,000, with 6 per cent, interest from the date of the loss of the lease. The defendants appeared and presented general and special demurrers to the petition, which the court sustained, and, plaintiff having declined to amend, judgment was rendered for the defendants, dismissing the suit, from which judgment the plaintiff has appealed. In the court below the plaintiff admitted in open court that the first count of his petition was predicated upon his allegations to the effect that, at the time of the court’s order appointing Sandford receiver on the 13th day of May, 1916, no suit in fact was pending in the district court of Upton county, it being charged that the application and petition for the receiver had not in fact been filed with the clerk of the district court of Upton county until the next day, to wit, the 14th day of May, 1926. By proper pleas the defendants urged that this constituted a collateral attack upon the order of court appointing the receiver, and that therefore plaintiff’s suit should be abated, and plaintiff be required to seek relief, if he so desired, in the district court of Upton county, where the receivership was pending, and the court’s ruling sustained this view. We think the court ruled properly on the question. Under our statute (article 2293, Rev. Statutes of 1925), the authority of a judge of a court having jurisdiction of the subject-matter to appoint a receiver in a proper case and in a pending suit cannot be, and is not, questioned. Appellant’s contention is that in the present instance there'was no suit pending in Upton county at the time of the appointment under consideration, and that therefore the order of appointment- is a nullity, and hence that the proceedings may be attacked collaterally. That the attack in the present suit is a collateral one cannot be questioned. That the judgment of a domestic court upon a matter within its jurisdiction cannot be attacked collaterally, unless the record itself by its recitations shows the judgment to be void, seems so well established that no citation of authority is necessary. We will, however, quote from a few cases to illustrate the doctrine. In the case of Levy v. Roper, 113 Tex. 356, 256 S. W. 251, it is said: “The necessity for maintaining rights acquired on the faith of apparently valid judgments of domestic courts of general jurisdiction has led. to the rule, now firmly established in Texas, that whenever such judgments are collaterally assailed their jurisdictional recitals are not open to attack but import absolute- verity.” Judge Denman, of our Supreme Court, in the case of Crawford v. McDonald, 88 Tex. 632, 33 S. W. 328, said: “Where a personal judgment has been rendered against a defendant by a domestic court of general jurisdiction, and under the same his property has been seized and sold, he will not, in a contest over the title to the property, be allowed to show by evidence dehors -the record that the judgment was rendered without any service whatever upon him. Logically the judgment is in fact void, but on grounds of public policy the courts, in order to protect the property rights, apply the rule aforesaid, which precludes inquiry into facts dehors the record for the purpose of showing the invalidity of the judgment; and therefore for all practical purposes, in such collateral attack, the judgment is held valid.” In the case of Cleveland v. Ward, 285 S. W. 1063, Chief Justice Cureton, speaking fox [522] the Supreme Court on judgments void for want of service, said: “Such judgments against the parties not served are void, and yet, because of recitals in the judgments, they cannot be collaterally attacked. Levy v. Roper, 113 Tex. 356, 361, 256 S. W. 251.” In the case of Martin v. Burns, 80 Tex. 676, 16 S. W. 1072, it is said: “Where the case is within the jurisdiction of the court and no fact appears affirmatively in the record sufficient to defeat the jurisdiction, evidence aliunde, even where the judgment is silent as to the process or its service, will not be heard to contradict the presumption of regularity or to establish a fact outside of the records for the purpose of showing that jurisdiction over the former did not in fact attach and thus impeach the judgment, if the judgment itself finds and recites a valid notice or citation and service that controls the balance of the record, otherwise if it recites an invalid citation, or names the precise character thereof. If the judgment is silent, then the whole process in the record may be examined. This is as far as the courts can go when the proceeding is collateral. These rules of decision are too well established in this state to need any further discussion.” So, too, in the case of Brown v. Clippinger, 113 Tex. 364, 256 S. W. 254, in an opinion by Justice Greenwood, it is held that, quoting from the headnote: “Judgment which recites facts sustaining the court’s jurisdiction rendering the same is not subject to a collateral attack.” Many other decisions of like tenor and effect might be cited, b.ut, as stated, we think it unnecessary to go further. We wish to emphasize the concluding portion of the opinion of Martin v. Burns, supra, where it declares that: “If the judgment'itself finds and recites a valid notice or citation and service, that controls the balance of the record.” The authorities cited clearly indicate that the legal presumptions are in favor of the judicial acts performed by a public officer within the general scope of the powers conferred upon him by law, and in assuming to exercise such a power the issue of whether the circumstances exist which confer upon him the power or jurisdiction to act is necessarily involved, and his judgment on this issue is conclusive until set aside in a legal way in a proper proceeding. It will be observed that the order appointing- the. defendant Sandford receiver of the property of the Owenwood pool No. 3 sets forth the style of the case in which the order is made .as that of O. B. Tandy v. Owen A. Wood* et al., No. 83, in the district court of Upton county, Tex., Eighty-Third judicial district of Texas; and recites that the “petition (manifestly the petition in which the application for the receiver was made) filed herein and praying, among other things, for the appointment of a receiver having been presented to me, in chambers, on this the 13th day of May, 1926, it is ordered, adjudged, and decreed that W. G. Sandford, of Fort Worth, Tarrant county, Tex., be and he hereby is appointed receiver of all of the assets and properties described in said petition,” etc. These recitations clearly imply the fact now assailed that the petition, at the time of the application, and at the time the court made his order, had been filed in the case of O. B. Tandy v. Owen A. Wood et al., in the district court of Upton county, Tex. This being true, as we think it is, it follows, in accordance with the decisions from which we have quoted, that neither allegation nor proof was available to appellant to show, as he attempted to do, that the petition in the case of Tandy v. Owen A. Wood et al., No. 83, had in fact not been filed until the following day, to wit, May 14, 1926. Appellant sought to show by the certificate of the district clerk of Upton county that the petition in cause No. 83 had not been filed until May 14th; that a citation and copy of the petition issued to be served upon a nonresident defendant in that case recited that the petition had been filed on May 14th rather than on May 13th. Appellant also offered oral testimony of witnesses tending to show the same fact. Appellant cites the case of Amason v. Harrigan, 288 S. W. 566, by the San Antonio Court of Civil Appeals, which holds that an order appointing a receiver on the day before the original petition in the suit was filed was void; there being no suit pending to support the appointment. But the order in that case, which is set out in the opinion, merely recites that the application came on to be heard on the 9th day of September, 1926, and wholly fails to contain a recitation, either direct or implied, that a suit was pending at the time of the order, and the court found, without setting out the evidence upon which the finding rested, that the original petition in the case had not been filed in the court below until September 10th. In aid of the conclusion,, we must presume, if necessary, that the finding was predicated upon evidences disclosed by the record as a whole. We have not been able to find where that case has been before our Supreme Court, or otherwise reviewed, and it seems to have been held in the case of Scott v. Cobb, 30 Tex. Civ. App. 190, 70 S. W. 802, by the Dallas Court of Civil Appeals, that the appointment of a receiver without notice, and before filing of a petition, was not ground for reversing the judgment; no motion tó vacate the receivership having been made. If it be assumed, however, for the purposes of argument, that the filing of the petition in the suit was a prerequisite to the validity of the order of appointment, we nevertheless [523] think, in view of the recitations in the order of appointment in the case before us, that the court properly ruled in sustaining the demurrers of defendants and in excluding the evidences referred to, and offered by, appellant. We further conclude that" the court properly sustained objections to the second count in appellant’s petition seeking to recover from the receiver, a judgment based upon allegations that the receiver had been negligent whereby the Owenwood pool No. 3 had lost the alleged value of the lease referred to. It appears from the petition that the receivership suit in the district court of Upton county, in which the appellant is one of the defendants, is yet pending, and it does not appear that any motion to vacate the receivership or any complaint in that court of misfeasance or malfeasance on the part of the receiver has been made, and we think that the district court of Upton county is the tribunal in which the appellant must seek the relief desired. It is said in 23 R. O. L. p. 66, that all authorities sustain the proposition that, when a court of equity acquires jurisdiction of a cause, and appoints a receiver to take charge of the property involved, then no other court of co-ordinate jurisdiction has any power .or authority to interfere or meddle with the property in the hands of the receiver, but must leave the court appointing the receiver untrammeled in its administration of the same, as the law directs. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons, and has no reference to the supremacy of one tribunal over the other, nor to the superiority in rank of the respecting claims, in behalf of which the conflicting jurisdictions are invoked. In the case of Russell v. Texas & P. Ry. Co., 68 Tex. 646, 6 S. W. 686, it is said, quoting from the headnote: “The property [involved in the receivership' proceedings] is in the custody of a court through its receiver.” In the case of Ellis v. Water Co., 86 Tex. 109, 23 S. W. 858, it was held that, after property has been placed in the hands of a receiver, it is not subject to levy and sale under execution. See, also, Mudge v. Hughes (Tex. Civ. App.) 212 S. W. 819, and cases therein cited. In the case before us, appellant sues, not in his individual right, but as trustee and for the benefit of the Owenwood pool No. 3, and any judgment that he might recover against the receiver Sandford and the surety on his bond would constitute an asset of which, the receiver in the Upton county suit would be entitled to possession and control under the orders of the district court appointing him. If, indeed, as alleged, the receiver Sandford has been guilty of negligence and consequent losses to the association for which appellant is a trustee, the district court of Upton county will doubtless, upon the prop-' er application, give the proper relief. Upon a proper showing, that court would have power to remove the present receiver and appoint another with direction or authority to sue the present receiver and his surety to recover any and all sums that may be due the estate administered. These are mere suggestions made on the assumption that the receivership in Upton county may be vacated and set aside on the grounds alleged in the first count of appellant’s petition, in which event. he could sue in any court having jurisdiction over the defendant Sandford and his bondsmen. For the reasons indicated, we conclude that the judgment below should in all things be affirmed.