National Surety Co. v. David Castle Const. Co.

170 S.W. 800, 1914 Tex. App. LEXIS 975

• Court: Court of Appeals of Texas
• Decided: October 22, 1914
• Docket: No. 341.
• Status: Published

Opinions

HARPER, C. J.

Upon the application of the receiver, J. B. Cochran, a hearing was had by the district judge in the receivership proceedings of National Surety Company v. David Castle Construction Company, and E. A. Laughlin was ordered by the judge in chambers to return any and all lumber and property removed by him from the tract of land upon which a schoolhouse was being erected in the city of Port Arthur, Tex., to the receiver, and to show cause why he should not be punished for contempt. The order entered is:

“ * * * The said E. A. Laughlin is hereby commanded to return * * * within ten days from this date all lumber removed by him. * * * It is further ordered that, should the said Laughlin institute an appeal' within ten days from this date, he may, in lieu of the return of said property, give a good and sufficient supersedeas bond in the sum of sixteen hundred ($1,600.09) dollars, conditioned, in addition to the statutory conditions of said bond, that should the order be affirmed the said Laugh-lin and his sureties will pay to the said J. B. Cochran, receiver, the value of said lumber and other property so removed according to the contract and estimate between David S. Castle and the said E. A. Laughlin, together with interest at the rate of 6 per cent, per annum from this date; or should the said appeal be dismissed by the Court of Civil Appeals, or. not be decided upon its merits by said court, then said Laugh-lin shall, within ten days after such dismissal or decision, institute, and prosecute with diligence, an action to determine the title and possession of said property and if it be finally determined to be in said Cochran, receiver, the said Laiighlin and his sureties shall pay to the said Cochran the value of said lumber according to the contract and estimate between the said Cochran and Laughlin, together with 6 per cent, interest from this date. It is intended that in the event of such second action this bond shall also be considered as a supersedeas bond in said cause. * * * ”

From which E. A. Laughlin appeals.

[1] It is admitted that this order was entered by the judge in chambers, and it is urged by both parties that it is not a final judgment, from which an appeal will lie, and both are correct. In Pittman v. Byars, 100 Tex. 518, 101 S. W. 789, Chief Justice Gaines, in the opinion, says:

“Though a judge of the district court may decide certain matters in vacation, and render judgment therein, yet such judgment, whether interlocutory or final, is not the judgment of the court over which he presides, but is merely his judgment as a judge sitting in vacation. In such case, unless a-right of appeal be given by positive law, none exists. 4 Eney. PI. & Pr. 365. Since our statutes give the right of appeal only from the district and county courts, and since the judgment in this case was a judgment in neither court, we think we acquired no jurisdiction.”

[2] Besides, interlocutory orders in receivership proceedings are not reviewable on appeal until the case is finally disposed of. United States & Mexican Trust Go. v. Texas Southern Ry. Co., 46 Tex. -Civ. App. 116, 101 S. TV. 1048; High on Receivers (4th Ed.) § 26.

Dismissed.