Ripy v. Redwater Lumber Company , 48 Tex. Civ. App. 311 ( 1907 )

I concur in the affirmance of the judgment of the court below, but as stated in the opinion delivered by Chief Justice Rainey, I dissented from the order overruling appellees' motion to dismiss the appeal, and I now desire to state my reasons therefor: Our statute (article 1383) provides that an appeal may be taken from an interlocutory order of the District Court appointing a receiver in any cause, provided said appeal be taken within twenty days from the entry of such order. The record shows that after W. J. Moroney and Harry Munz were appointed joint receivers of all the property of the lumber and railway companies on April 13, 1907, they promptly qualified and entered upon the discharge of their duties, and that on April 18, 1907, the suits, upon motion of plaintiffs, were consolidated. On May 10, 1907, appellants, J. W. Ripy and O. P. Ripy, filed in the consolidated suits a motion to vacate the receivership. On May 21, 1907, the directors of the companies were made parties to the suit. Harry Munz, who had been on April 13, 1907, appointed one of the receivers, was one of these directors, and upon being made a party to the suit he requested the court, in writing, to determine whether or not he was disqualified to further act in the capacity of receiver, and, in the event he was so disqualified, tendered his resignation. The court held that Munz was disqualified to act as receiver, his resignation accepted and he was removed. An order was also made on said 21st day of May, that W. J. Moroney be continued and appointed as sole receiver of all the properties of said companies. Appellant Barrier, on May 30, 1907, filed his motion to set aside the appointment of receivers and to vacate the receivership. On May 31, 1907, both motions to vacate the order appointing a receiver and the receivership, were overruled. Appellants gave notice of appeal and on June 8, 1907, filed their respective appeal bonds. The majority of this court hold, as I understand, that the order continuing and reappointing W. J. Moroney as sole receiver on May 21, 1907, constitutes the order of appointment from which appellants were authorized or required to appeal, if they wished to have the action of the court in appointing a receiver reviewed, and that inasmuch as the appeals were perfected within twenty days from that date, they were taken within the time prescribed by law. With this view of the matter I do not agree. I am of the opinion that the existence of the receivership dates from the appointment of W. J. Moroney and Harry Munz as receivers on April 13, 1907, or the entry of the order of such appointment on April 16, 1907, and that in order to secure a revision of the court's action in appointing a receiver, by this court, it was necessary to perfect an appeal therefrom within twenty days from the date of said appointment, or the entry of the order to that effect; that inasmuch as the appeal bonds of appellants were not filed until June 8, 1907, their appeals were not perfected within the time prescribed by the statute quoted and should have been dismissed. The acceptance of Munz's resignation and his removal did not have the effect to vacate the receivership or discharge Moroney. The latter's appointment, as originally made on April 13, 1907, remained unaffected by the removal of Munz and would have continued in full force after Munz's removal without the order of the court reappointing him. The order of May 21, 1907, recites: "That W. J. Moroney be and he is hereby continued and appointed as sole receiver," etc. This is but a precautionary measure or order of the court, not actually necessary to a continuation of the receivership and Moroney's appointment, and can not be construed as an appointment of Moroney as receiver separate and distinct from his original appointment, and from which an appeal would lie. The order made May 21, 1907, simply removed Munz because of his disqualification on account of interest in the litigation, and did not terminate the receivership. This would have been true, even if Munz had been, at that time, the only receiver. For a clear distinction is drawn between the removal and the discharge of a receiver. "A receiver is removed when it is made to appear that the interest of the parties concerned require it, and a receiver is discharged when the objects sought to be obtained by his appointment have been accomplished. In the one case the property in litigation continues in the possession of the court, subject to the final decree, while in the other case it passes, pursuant to the decree, to the party entitled. The term 'removed,' as applied to a receiver, means simply a change in the personnel of the receivership, which continues unaffected. The 'discharge' of a receiver relates to the termination of the receivership," etc. Beach on Receivers, pages 847, 848. So that if Munz had been at the time of his removal the sole receiver of the lumber and railway companies, and Moroney had then, by appointment, been substituted in his stead as receiver, it seems an appeal could not have been prosecuted therefrom. The substitution in such case would not have been such an appointment as is contemplated by our statute authorizing appeals from interlocutory orders appointing receivers. It logically follows, it seems to me, and with stronger reason, that where two receivers have been appointed and one is removed for cause, the continuation of the other as sole receiver, by an order of the court, is not the appointment within the meaning of the statute, from which an appeal may be prosecuted. The reason is stronger in such case because the removal of the one does not abrogate or materially affect the original order appointing the other, and because the order continuing or reappointing such other person as receiver was unnecessary for the purpose intended. The case of Luck v. Hopkins, 92 Tex. 426, cited in the opinion of the court, is not applicable. In that case the original judgment was reformed at the same term of the court at which it was rendered, and although as reformed, was similar to or the same as the first judgment, yet it was held that the entry of the last judgment had the effect to vacate and set aside the first; hence, the last was the only existing judgment, and the only one from which the writ of error could be prosecuted. Here the effective order appointing a receiver was the one made April 13, 1907, and the unnecessary order continuing Moroney as receiver did not have the effect to set aside and vacate it.

There is another reason why I think the appeals ought to have been dismissed. The appellants, as has been shown, made motions to set aside the order appointing the receivers and to vacate the receivership, and said motions were by the court overruled. The record discloses that it was from the judgments denying these motions that the appeals were taken. The appeals do not purport to be taken from either the order appointing Moroney and Munz joint receivers, or from the order continuing or appointing the said Moroney as sole receiver. Separate appeals by Ripy et al. and Barrier were taken, and the only thing in the record that can be construed as indicating that an appeal from the order appointing a receiver was intended, or being prosecuted, is found in Barrier's appeal bond. This bond, after describing the judgment overruling Barrier's motion to vacate the receivership, simply recites: "and whereas said intervener, B. C. Barrier, desires to appeal from said orders overruling and denying said motion to vacate said orders and to appeal from said orders appointing and continuing said W. J. Moroney as receiver," etc. Ripy's appeal bond does not even contain this recital and neither of the judgments overruling the motions to vacate show any exception to the court's action in appointing receivers, or otherwise refer to such action. Each simply states that the motion to vacate the orders appointing receivers as originally made and as further made on May 21, 1907, making W. J. Moroney sole receiver, was overruled, to which interveners excepted and gave notice of appeal, etc. These orders show, and they should control, that the appeals were simply taken from the judgment overruling the motions to vacate the receivership, and not from the orders appointing the receiver. Now, we have no statute which authorizes an appeal from an order refusing to vacate a receivership and discharge the receiver, and it is only by such authority that such right of appeal could exist in this State. The statute referred to only authorizes an appeal from an interlocutory order appointing a receiver, and not from an order overruling a motion to discharge the receiver. It has been so held by the Court of Civil Appeals for the Third District in the case of Fidelity Funding Co. v. Hirshfield, 41 Texas Civ. App. 517[41 Tex. Civ. App. 517]. I am not expressing any opinion as to whether or not it is necessary, in order to confer jurisdiction upon the Appellate Court, that the record should show that notice of appeal was given from the order appointing a receiver. I simply hold that the record in this case shows affirmatively that notice of appeal was given from the orders overruling appellants' motions to set aside the order appointing a receiver and to vacate the receivership; that the appeals were prosecuted from said orders alone, and could not be entertained by this court. The mere recitation in Barrier's appeal bond, that "he desires to appeal from the orders appointing and continuing said W. J. Moroney as receiver," when there is nothing else in the record showing that he has done so, and when the record does expressly show that the appeal was taken from an order overruling a motion to vacate the appointment of a receiver, is not sufficient in my judgment, to show an appeal from such order of appointment. I am of the opinion that both appeals should have been dismissed.