Miller v. Wilkinson

Court of Appeals of Texas

Miller v. Wilkinson

166 S.W.2d 741

CourtCourt of Appeals of Texas

DecidedNovember 25, 1942

DocketNo. 4112

StatusPublished

Cited by1 cases

This text of 166 S.W.2d 741 (Miller v. Wilkinson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Wilkinson, 166 S.W.2d 741 (Tex. Ct. App. 1942).

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Opinion

O’QUINN, Justice.

This appeal was prosecuted from an interlocutory order of the district court of the 60th judicial district of Jefferson county, made and entered on the Zlst day of October, 1942, appointing a receiver on the prayer of appellee. The order was made before the petition was filed and without notice to appellant. The court held in Solomon v. Mathews, Tex.Civ.App., 238 S.W. 307, 309, that the appointment of a receiver prior to the institution of the suit “by filing of the petition,” constituted fundamental error. This proposition seems to be the uniform holding of our courts. Webb v. Allen, 15 Tex.Civ.App. 605, 40 S.W. 342; Bingham v. Graham, Tex.Civ.App., 220 S.W. 105; Amason v. Harrigan, Tex.Civ.App., 288 S.W. 566. Appellant cites no authorities against this proposition but asserts that the holding is “flimsy” and “technical.” We are certain that eminent counsel would not have this court put itself in conflict with the unbroken line of decisions in this state by holding the contrary to the proposition of fundamental error announced by the court in Solomon v. Mathews, supra.

It follows that the order appointing the receiver should be reversed and set aside, and it is accordingly so ordered.

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O’QUINN, Justice.

This appeal was prosecuted from an interlocutory order of the district court of the 60th judicial district of Jefferson county, made and entered on the Zlst day of October, 1942, appointing a receiver on the prayer of appellee. The order was made before the petition was filed and without notice to appellant. The court held in Solomon v. Mathews, Tex.Civ.App., 238 S.W. 307, 309, that the appointment of a receiver prior to the institution of the suit “by filing of the petition,” constituted fundamental error. This proposition seems to be the uniform holding of our courts. Webb v. Allen, 15 Tex.Civ.App. 605, 40 S.W. 342; Bingham v. Graham, Tex.Civ.App., 220 S.W. 105; Amason v. Harrigan, Tex.Civ.App., 288 S.W. 566. Appellant cites no authorities against this proposition but asserts that the holding is “flimsy” and “technical.” We are certain that eminent counsel would not have this court put itself in conflict with the unbroken line of decisions in this state by holding the contrary to the proposition of fundamental error announced by the court in Solomon v. Mathews, supra.

It follows that the order appointing the receiver should be reversed and set aside, and it is accordingly so ordered.

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166 S.W.2d 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-wilkinson-texapp-1942.

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