Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-05-16

The assets OF the Vernon Ice, Light aud !
Water company, private cnfp9taul,u" sna
tered for the purpose Indicated by us halnyy' !
rpoi the gppllcaiion VI ]. u l.ockett 4 I
creditor without judgment ~ hrny psv /
IL the hands Of receiver ~ fenrunii! /
following. at a regular term Of the district I
court the mofiun nf CLOVER. Harris o.
Judgment aud iirl creditors, VINO hhn lnteI-
yencd In the suit, The receiNeisnlp va
by order OF the court c1htluneu " iYtVsii
About lie same time, ihe fiiri Nnli9nai :
Dauk OF Vernon HE'D It's pea ol lnttrNen' ~.
also traying Tor We g gnti,Hu""nn. u Tnr.
uer and Oihers inicrvenrd. IN JmA' aplN' {
liant Ellis the hul1ef ~ Tie hnihlrl lh,te9l,
cdness, amounting 10 tpyut S ,hs KS, md
only mortgage On it, entire plant hnu rs
sets, dlld his plea OF inlerfghlioh; Sonumr,
Ing a general demurrer TO the pfutlOhs OF
nlniutin nud the other iutcryenurs, 4 gen |
eral denial. aud n special pra h'tltuE W I
his ownership VI the bombs anu inOias !
with power Of sale, alleging dcfault ~ tne
payment OF interest. M.d praying ioit
closure OF his prior lien aud that the SUI
he made through himself as Wustev, 81, ar
through such other person rs the cOutl hiBht
select. lie alsn alleged tue 10 Tue I"ts
upon which the waierworks plant was. III
part situated, derived FROM nn vAeenh2 i
sHle made under one Of the Judgments ~
favor OF Clover Harris Co.., forreloslns
En attachment lien created subsequent 10
the deed OF trust There was trial Win
out the Intervention Of jury, ana tue
record contains the COURTS CONCLUSIONS vi
fact mythetleily .lseI, but ~ ' thsrniore
rest upon these findings OF t1ct'
CONCLUSIONS
1. The first asslgnmcnt that there was
error Ia oNrfruiing The general exception
| OF appellant 10 the plrhaiiiss OF me Nlh,t
parties cannot be Sustained. II any ole OF
! these pleas Vas good for any purpose iWhlrh
/ must be sdmittVll the grncral d"luin'e I
was properly oNcr,u'ed ~ texas, - ="
I. H. A. Uiii Isl, BesileS. Inc a-7lsh-
ment is very seac-al aud no proposition Is
| submitted under II,
| I. The second aud third assignments coiu-
| plain OF the courts conclusions ~ uat
| the nppuiutL,en Of u receiver ~ inc m
stance OF a simple contract creditor 9i ~
| insOiyent corporation was authorized py
the third subdivision ~ article l4Ol Of the
| revised St1tuics ~ thrt. N there WIS error
| M such appointment the same was cured
| by the subsequent confirmation OF inc APP
| polntncnt at the II stance Of clover. Harris
| y Co, Who we're judgment and attachment
| lien creditors. We are Of opinion thnt lhe
| findings on this issue should not be disturb
! ed, N fnr ne other reason, because appel.
liant failed 10 take any steps IN the lrlai
| court TO vacato the recelverslhp We 1all
To nnh Ia the record any motion or prayer
on his part Tor such relief, aud tue o. "
| assault made upon the recclrershlp 1y ms
| plr.dlngs Ia the court below whicil We
| have fccn able To hnd consisted of the
| following statement Incidentally made III
pnrenth, sls. mot admitting but denying
| the legality OF the rtccNcrship proceed
| ings heren" The rest OF his plea seems
II have contemplated the continuance OF
the receivcrghp, which was supplemented
by an agreed Judgment TO that eject. ana
we thlnE he must be held 10 have acpul'
caced Thereby.
B. The fourth assignment, in the language
Of appellant goes to the Right of the
court In any case, other than Il railway
rccciverShip, to fix upon the corpus Of the
| property 4 lien prior to Tile first mortgage
bonds. which right is denied by him. This
| position seems to rs to he arbitrary and
without support In reason or authority.
The ground upou which this right was de-
/ ulpl n uuNIWufluu gOtuuNnN,
Ronnd's case. 50 l. It. SO, relied upon BY
appellant would seem 10 require that the
doctrine should be- held ~ applicable to
the wntcrwnrlss Of Il city or town as TO a
railway. In the one case, as IN the other,
the intciposition ~ sovereign power is re-
, qnlrcd TO secure tho land upon which It Is
, constructed Il Is there laid down that
this exercise OF the right Of eminent do
rialn ia bestowed by the sovereign IN con-
sidpratiOn Of the continued puddle use. which
, public use, as there defined, arises when
, The sovereign power Is essential 70 the
enterprise and is exercised because NJ such
use. THE hold'holder lends llls money with
the knowledge of this condition, REVISED
statutes, article AS. See also karn aud
HcLAon vs., ilorcr lron company, ~ la, Iji
This question In placed beyond controversy
so far as debts aud liabilities arising dur
tug The rccciycrshlp are concerned by lht
revised statutes. Suylcs' Add Ari. lAJG
! | This conclusion oNerruleH tue seventh rs.
slgnment also. which readt, "thr court erred
\ In finding and dccrctng that The cost ex'
u prnses, salary. etc. Including receivers Ger
tihcates, shonll be- paid ont of the proceed,
arising from the sale OF the property u.
q We are OF OplnIon, however. that III,
sixth assignment, rcahing; the court cfrel
In finding and dccrcclng that the S2i0l.5'
uf the earnings OF the defendant were al
verified To such purpose rs gave the Inter
I yvnors rnd plnlniir right to be paid t.
y a sale Of The property Itself" must b. srs
. taincd, These claims all originated Iona
. before the recrlNwshlp, II appears thai
rlpYn. Vt.. ma firm FlfN
tion Of the plant pendlug the receiyershlp
I nor does II appear that the revenues prcvi
i oNsy expended upon the Improvement ant
/ extension Of the plant cnhanced It's value
! nor that the holders OF these claims hnt
I. beeu In any way prevented from collecting
the same by proceedings AT law, nor tina
the COMPANY he'd been allowed by the mort
q gage hondhnldrr to remain In possession aui
a operate the plant after Insolvency aud lie
" prived OF the control " iis property or tn
Ike. This record presents the case ~ III
J, appointment u receiver not at the In
stance ot hondholdcrs or officers of corpo
= ration to the incidental detrimcnl OF III
!. favored cliss OF unsecured creditors. hu
y upon the application NJ holders OF unsecur
9 eli clnima Tor supplies furnished and none
'e advanced who Ind neglected tn proceed /,
IL law 10 collect tholg deh'. alleging the r.
. cent insol ,etcy OF tho corporation ns the sol
ground Tor appointing the receiver, an
y seeking thereby 70 arqulre u preference
lc lea 20 pdve such claims under the eli
~ cunstances disclosed by the record, a pre-
Is ference lien on the eorpns Of the estate,
Il seems TO ~ would he io ~ further tia
any case has yet g, me Ia suborlinRtinr
nxed lietn 10 Il noatng debt Mcllhenny y,
n Ben1. 50 Texas, N, Quincy etc l,nliwl,
u company vs. HUMPHREYS, ila u. 5. lO3 an
10 eases there quoted from We Rre strength
\, ened IN Tits conclusion by the lcglslafio
had on the subject ~ receiNershins r.
! prior To the transactions Involved whit,
I, seems to have made more certain the ver
nrxihle rules governing recciysrships d
. administered In courts Of equity liy III
n acts Of 1881 and 1889 amending anil Fl
~ larglug the statute ON that subject thr oni
" cllims on the property IN the hands OF M
u receiver superior to the mortgage Hen az
Is judgments for causes " action arising dprir
II the recclvcrs.np Sayles' Add, Aft iitp
4 Claims arising prior thereto are limited
NJ u preference lien on the moneys comm
:" into tho hands " the receiver az the earl
ngs of tho property IN his hands, aud al
n last N thO nrisr ~ preference saylp
Il. statutcs. Arts. t4TO d. lao 9, Ada. iia
u. Without net earnings, therefore. no pr
~ vision IL made for their payment. m
Y. Hen therein repeatedly declared TO be snpe
~ lof Ia the mortgage lien on tho corpus ,
a. the property IL Invariably llnlltod 10 claiu
n or causes OF action arising during the r
r. Ownership. The only provision for the ph,
n nent Of antecedcnt floating dphis out ,
4, the proceeds Of the sale Of the mortgage
x, property IA prcfcrcnce 90 the dcht secufs
~ by the murtEnge Is where the receiver Il,
spout current earnings comlng into Il
IA hands NJ such IN Improving Tho propert
III whereby la value has been iacreasssi Al
n, ihen only TO the extent u the valuc
~ sub improvements. SANles statutes. A.