Kopplin v. Ludwig

CARL, J. On February 19, 1914, Louis Kopplin, as the assignee of Otto Klaus, filed suit against Herman. Ludwig on a note for the principal sum of $2,000, dated July 24, 1913, and due on demand, for 8 per cent, interest per annum, and for 10 per cent, attorney’s fees, as well as to foreclose a lien given to secure said note on 15 barrels of whisky stored on the premises at No. 1929 North New Braunfels avenue, in San. Antonio. The judgment for the debt and foreclosure, which recites service on Ludwig, was taken on March 9, 1914, in the Thirty-Seventh district court of Texas, in Bexar county. On April 10, 1914, Martin Coppard, trustee in bankruptcy of the estate of Herman Ludwig, filed in said cause an application reciting that an involuntary petition in bankruptcy was filed against Herman Ludwig in the United States District Court for the Western District of Texas, at San Antonio, and that on Feb:ruary 13, 1914, the said Ludwig was duly adjudged a bankrupt, and on the 13th of March, 1914, Martin Coppard was duly elected and qualified as trustee of the Ludwig estate. It is further shown in the affidavit that an order of sale had issued on the judgment of foreclosure in the state court, and that John W. Tobin, sheriff of Bexar county, had advertised a sale of said whisky to satisfy the judgment, and the date of the sale was April 11, 1914. Prayer was that the Thirty-Seventh district court of Bexar county, Tex., make an order withdrawing the order and forbidding the sheriff to proceed with the sale of the property, and for general relief. This application was verified as follows: “The State of Texas, County of Bexar. “Before me, the undersigned authority, on this day personally appeared Henry A. Hirsh-berg, attorney of record for Trustee Martin Coppard, and who, being by me duly sworn, deposes and says that he believes the material allegations in the foregoing petition to be true. April 10, 1914. “[Seal.] Geo. E. Bell, Notary Public, “Bexar County, Texas.” The sheriff responded to the writ of injunction which the court issued and which was served on him by a general demurrer, reserving the right to answer at the next regular term of the court, and prayed that, the temporary injunction be dissolved. On April 20, 1914, the court, after hearing the demurrers, overruled same, and made permanent the injunction theretofore issued, and the sheriff and Louis Kopplin thereupon excepted and gave notice of appeal. Later, on application by Coppard, the court modified the injunction by omitting that part making it permanent, and ordered the sheriff immediately to turn over the whisky to Martin Coppard, trustee. Kopplin and the sheriff filed a second motion for a new trial, which was overruled April 29, 1914, but the court permitted Kopplin to give a supersedeas bond to prevent the delivery of the whisky to Coppard, trustee, and this was done. Kop-plin alone has perfected his appeal. [1] This being an appeal from an order granting a temporary injunction, we must look to the sufficiency of the application, because it was not a trial on the merits and no evidence was heard. In such case the test of the matter is .as to whether the application itself meets the requirements of the statute; for on that, and that alone, the court bases its judgment. Measured by the statute, and, in the light of decisions construing same, this application was insufficient. If the facts set up in the application be true, we do not mean to state that the tri *106 al court was in error in pursuing tlie course taken in its entirety; but tbe very foundation of tbe same is tbe affidavit, and, since that does not meet tbe requirements of tbe statute, tbe matters set out stand as mere unsupported allegations wbicb would not justify tbe court in assuming tbe truth of tbe same. Tbis requires a reversal of tbe judgment. Tbe second assignment is sustained. Lane v. Jones, 167 S. W. 177, and cases therein cited. [2] But if the facts set up in tbe application are true, “tbe filing of tbe petition [in bankruptcy] is a caveat to all tbe world, and, in effect, an attachment and injunction. * * * And, on adjudication, title to tbe bankrupt’s property became vested in the trustee, with actual or constructive possession placed in tbe custody of tbe bankruptcy court. * * * ” Tbe filing of tbe petition is an assertion of jurisdiction with a view to tbe determination of. tbe status of tbe bankrupt and a settlement and distribution of bis estate. Tbe exclusive jurisdiction of tbe bankruptcy court is so far in rem that tbe estate is regarded as in custodia legis from tbe filing of tbe petition. It is true that, under section 70a of the act of 1898, tbe trustee of tbe estate, on bis appointment and qualification, is vested by operation of law with the title of tbe bankrupt as of tbe date be was adjudicated a bankrupt; but there are many provisions of tbe law wbicb show its purpose to bold tbe property of tbe bankrupt intact from tbe time of tbe filing of the petition, in order that it may be administered under tbe law if an adjudication in bankruptcy shall follow tbe beginning of tbe proceedings. Section 70a, in reciting tbe property which vests in the trustee, says there shall vest “property which prior to the filing of the petition (tbe bankrupt) * * * could by any means have transferred or which might have been levied upon and sold under judicial process against * * * (the bankrupt).” Under section 67c attachments within four months before tbe filing of tbe petition are dissolved by the adjudication in the event of the insolvency of the bankrupt, if their enforcement would work a preference. Provision is made “for the prompt taking possession of tbe bankrupt’s property, before adjudication, if necessary [section 69a]. Every person is forbidden to receive any property after the filing of the petition, with intent to defeat the purposes of the act.” Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 32 Sup. Ct. 96, 56 L. Ed. 208. These observations are made in view of further proceedings in tbe case, since we cannot indulge any presumption as to the truth of tbe allegations, in the absence of the statutory verification. The judgment is reversed, and the cause remanded. On Motion for Rehearing. [3] Appellee, Martin Coppard, has filed a motion for rehearing, and contends that this is an appeal from a refusal to dissolve a temporary injunction, and is therefore not an appealable case. In tbis he is incorrect. The court first granted a temporary injunction on April 10, 1914, and in tbis injunction tbe sheriff is ordered to desist from making the sale of the whisky as advertised, and until the further order of tbe court. The bearing was set for May 1, 1914. Tbe sheriff interposed a general demurrer, and, in tbe event be should be held to answer, denied the allegations of tbe affidavit of intervention, and asked that the injunction be dissolved. Thereupon, on April 20, 1914, the court made its order overruling the demurrer and granting a permanent injunction restraining tbe sale by tbe sheriff, and further ordering him to turn over the whisky to the said Martin Coppard, trustee. Tbe temporary injunction was, by this order, made permanent. Appellant and tbe sheriff excepted and gave notice of appeal. They followed this up by duly filing a motion for a new trial on April 22, 1914. On the same day that tbe appellant filed bis first motion for a new trial, appellee, Coppard, filed his motion to correct the order in so far as the same made tbe injunction permanent. On April 27, 1914, tbe court granted tbis motion and modified the original order entered on April 20th by eliminating that part making it a permanent injunction, and on April 29, 1914, appellant again filed a motion for a new trial, and, when it was overruled, exception was taken and notice of appeal given, and a supersedeas bond given the same day. Tbe last temporary injunction is a different one from tbe first, in that it is a mandatory order requiring the sheriff to deliver to Coppard the whisky, while tbe first merely commanded him to desist from making the sale. There was no motion to dissolve this last order wherein that part making it permanent was eliminated. Appellant had placed himself in a position to appeal from tbe final judgment making tbe injunction permanent by filing his motion for a new trial. When be did this, the court changed the order, making it a temporary order. There was no motion to dissolve tbis last temporary order, and there was the additional mandatory provision in it that was not in the first temporary order, which would certainly give him the right to appeal when it was granted. Tbe court was undecided as to what action to take as indicated by the modification and changes; so that be did not act finally until the order was made from which this appeal is taken. And even if the last modification be held to reach back to tbe former order, as it does, thére was no mandatory feature in that- temporary order wbicb appellant moved to dissolve, and when that new pro- *107 yision is inserted in the injunction, appellant had a right to appeal. The motion for rehearing is overruled.