Opinion
No. 4010.
April 16, 1931. Rehearing Denied April 23, 1931.
Appeal from District Court, Dallas County; W. M. Taylor, Judge.
Suit by G. H. Jackson and others against the Kermit Townsite Company, D. P. English, and others. From the judgment, plaintiffs and D. P. English appeal.
Affirmed.
The appeal is from an interlocutory order refusing to appoint a receiver, and dissolving a temporary injunction theretofore granted.
The townsite of Kermit, in Winkler county, was laid out and is owned by the Kermit Townsite Company, a corporation. G. H. Jackson and five other persons, not as creditors or lienholders, but purely in the capacity of minority stockholders, brought the suit against the Kermit Townsite Company, Pickens Burton, D. P. English, W. L. Saling, and M. M. Donosky, the First National Bank of Dallas, the Mercantile Bank Trust Company, and the Texas Pacific Railway Company. The petition set up, in substance, that the rights of plaintiffs and all the other stockholders in and as well the creditors of the Townsite Company were threatened with loss and injury because the Townsite Company was becoming insolvent, or in imminent danger of insolvency, through the mismanagement, setting out the details, of the affairs and assets of the corporation and that the directors and majority stockholders were all threatening and undertaking to dissipate and misapply to their own benefit the assets and properties of the company. The other named defendants had certain alleged contracts with the Townsite Company which were claimed to be unreasonable, unfair, and void. The following allegations appeared: "That the plaintiffs herein can not by applying to said directors and officers of said Kermit Townsite Company, receive any relief nor can the same be given at any meeting of the stockholders of said company in that, the directors and officers own a majority of the capital stock of said company and were the ones guilty of all the transactions complained of herein, and they will not sue for the benefit of said company and its creditors and stockholders for the recovery of its properties; and for all of which reasons the plaintiffs herein seek to maintain and prosecute this suit for the benefit of said company and all its stockholders and creditors to the end that their rights and the plaintiffs' rights may not be totally destroyed and the assets of said company be converted by said directors and officers."
The following is the prayer of the petition: "The plaintiffs pray the court to dissolve said corporation Townsite Company, and to immediately appoint a receiver, to take into his possession all of the properties and assets of said corporation, and that he be given full power and authority to institute such suit or suits as may be necessary to annul and cancel all of the contracts above mentioned, to appoint an auditor to make a full and complete audit of the books and records of said company, and to sue for recovery of all properties and assets of said company. That an injunction issue enjoining and preventing the said directors from making sale of said properties under the resolution hereinbefore mentioned and in case any sale has been made that the same be decreed to be null and void, and the said banks from selling or attempting to sell any of the properties of said company under the deed of trust or deeds of trust as above mentioned, and the railway company from making any sale or other disposition of the properties which is received from said Kermit Townsite Company as above alleged, and the officers and directors of said Kermit Townsite Company from exercising any authority for and in behalf of said company without first being so ordered to do by the court.
"That the contracts with said Daniels and the railway company and the banks be declared to be null and void and that a recovery be had of said officers and directors for any sums of money paid out by them thereunder. In the event said relief shall not be granted as asked then and in that event that the Kermit Townsite Company recover of said officers and directors all damages and loss that may have been occasioned by the acts and conduct of said officers and directors as above stated; and for such other and further relief, general and special, both in law and in equity to which the plaintiffs may be entitled in the premises they will ever pray."
This petition was filed August 11, 1930, and on that date the judge granted a preliminary injunction which was to operate pending a further hearing of the application on September 8, 1930. Thereafter, on September 25, 1930, the defendants the Kermit Townsite Company, Pickens Burton and W. L. Saling filed what is termed "their motion to dissolve the injunction heretofore issued herein." The district judge indorsed on this application the following:
"September 25, 1930.
"Above motion to dissolve injunction heretofore secured in this cause is set for hearing the 8th day of October, 1930, at which time the plaintiff in said cause will be required to appear and make answer to this motion."
The defendants in the original petition all made and filed an answer. The defendant D. P. English, in addition to his answer, filed a pleading adopting the allegations and prayer of the plaintiffs' petition, and including therein the further allegation that the Townsite Company was indebted to him in a past due account for $1,114.30. The plaintiffs filed a reply to the defendants' motion to dissolve the injunction, and asked the court to overrule the motion and to continue the temporary injunction in force and effect until the final trial of the cause.
On October 25, 1930, the district judge heard the motion to dissolve the temporary injunction, and, after hearing the evidence offered, entered this order: "It is ordered, adjudged and decreed by the court that the application of the plaintiffs herein for the appointment of a receiver for the Kermit Townsite Company be and the same is hereby denied; It is further ordered, adjudged and decreed by the court that the motion of the defendants, Kermit Townsite Company, W. L. Saling, and Pickens Burton, praying for a dissolution of the injunction heretofore issued on the 9th day of August, 1930, be and the same is hereby granted and that the said injunction heretofore issued on August 9, 1930, be and the same is hereby in all things dissolved and of no further force and effect."
The plaintiffs and D. P. English excepted to the above order of the court, and have duly appealed therefrom.
J. Lee Zumwalt and O. L. Wolf, both of Dallas, for appellants.
Allen Allen and Coke Coke, all of Dallas, for appellees.
The question on appeal is simply that of whether or not in the particular record there was error in denying the immediate appointment of a receiver and in not continuing the preliminary injunction in force until the final trial of the case on the merits. The preliminary injunction issued by the trial judge, as it appears, was directed to the "Kermit Townsite Company" commanding it "to desist and refrain from selling any properties under the deed of trust, and from transferring any of its assets to the First National Bank of Dallas or any other person, until the further order of the district court of the 68th Judicial District, to be holden at 10:00 o'clock A. M., Monday, September 8, 1930." The language of the fiat reasonably shows that the judge intended to have the preliminary injunction to operate and be in force, not for and until such time as the case should be finally tried and disposed of, but for and until the fixed time only of "Monday, September 8, 1930," the date of appearance for a further hearing of the application. In this view of the effect of the preliminary order of the judge, then the order was purely provisional in its nature, and expired on September 8, 1930, since there was no further hearing had or order of continuance of such provisional injunction on that date. Ex parto Zuccaro, 106 Tex. 197, 163 S.W. 579, Ann.Cas. 1917B, 121; Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14. The application to dissolve the injunction was not filed until September 25, 1930, and the order of dissolution was not made until October 25, 1930. As a legal consequence, the order of October 25th in terms directing the dissolution of such preliminary injunction was a vain act, for such previous order of the judge had already expired on September 8, 1930.
Assuming, though, that the plaintiffs reply to the defendants' motion for dissolution should be taken and regarded in the nature of either an application at that date for a preliminary injunction or in the renewal and continuation of the terms of the same provisional order, it nevertheless seems, in the examination of the record, that the appellate court would not be warranted in holding that the trial judge was not justified, and erred, in refusing to direct a restraining order in advance of the final trial of the case on the merits. In looking to the petition and fairly construing it, the plaintiffs, as a remedy for the alleged condition of affairs, wanted a receiver to be appointed to take charge of and administer the affairs and assets of the Townsite Corporation, and they prayed to have such receiver "immediately appointed." As an incident or aid to the "immediate" appointment of the receiver, the plaintiffs further prayed that an injunction be granted. The temporary injunction was sought contemporaneous with the "immediate" appointment of a receiver in the purpose merely to relieve against impediments that would otherwise apparently operate to render the immediate appointment of a receiver ineffectual or incomplete. The appointment of a receiver being refused, as was done by the trial judge, in advance of a final trial of the case, a temporary restraining order, intended merely as an incident or adjunct to the relief of appointment of a receiver, was properly denied. Leary v. Coal Wood Co. (Tex.Civ.App.) 185 S.W. 665. It would have been manifestly improper to have restrained the company and its officers from carrying on the business of the corporation and thus leave it without any management either by its officers or receiver. And, moreover, in taking the view that the prayer of the plaintiffs' petition asked for the distinctive relief of injunction, aside from the appointment of a receiver, merely to hold the properties and assets of the corporation in statu quo, there is lacking certainty that such prayer of the petition, fairly construed, specifically asked for a temporary injunction. A temporary injunction will not be granted, unless specifically prayed for. Boyd v. Dudgeon (Tex.Civ.App.) 192 S.W. 262; Hoskins v. Cauble (Tex.Civ.App.) 198 S.W. 629.
The refusal to appoint a receiver is not the subject-matter of review. No appeal lies from an interlocutory order denying appointment of a receiver. Swearingen v. Swearingen (Tex.Civ.App.) 165 S.W. 16; Tipton et al. v. Rwy. Postal Clerks Inv. Ass'n et al. (Tex.Civ.App.) 173 S.W. 562; article 2250, R.S.
The judgment of the trial judge is affirmed.