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Rule 695. No Receiver of Immovable Property Appointed Without Notice
TEXT
Except where otherwise provided by statute, no receiver shall be appointed without notice to take charge of property which is fixed and immovable. When an application for appointment of a receiver to take possession of property of this type is filed, the judge or court shall set the same down for hearing and notice of such hearing shall be given to the adverse party by serving notice thereof not less than three days prior to such hearing.
Source: New rule.
Oct. 29, 1940, eff. Sept. 1, 1941.
AMENDMENTS
ADVISORY OPINIONS
(No. 96) Question : How is notice given and served of the application for the appointment of a receiver under Rule 695 when the residence of the defendant is unknown?
Answer: We are of the opinion that the trial court can provide for notice in such a case. Rule 817, Ashford v. Goodwin, 103 Tex. 491, 131 S.W. 535 (1910), 20 Tex. L. Rev. 632, 5 Tex. B.J. 171 (No. 36), 15 C.J. 901, 21 C.J.S. 261.
The above conclusion, in our opinion, follows from the circumstance that the rule does not undertake to regulate the notice, and yet requires it, and that the court has both inherent power and power under Rule 817to provide a procedure. The procedure must be reasonable. The test of reasonableness would seem to lie in considerations of what under the circumstances would most likely bring notice home to the defendant. Service upon an agent or servant in charge of the property or upon a. member of defendant's family at his last Texas abode would seem to be preferable. If these are not possible, posting at the place and as in the posting statutes, or even publication, suggest themselves. See McDonald v. Mabee, 243 U.S. 90 (1917) upon the question of sufficient notice. In view of this case, we are of the opinion that if the defendant has an abode in the state, or had an abode at the time he left the state, a preferred service would be by the leaving of process at such place.
6 Tex. B.J. 193 (1943) reprinted in 8 Tex. B.J. 35 (1945).
(No. 127) Question: In an action to partition real property where the realty will not admit of a fair and equitable partition in kind and where the court, with the consent of both parties, appoints a receiver to sell the real property and where in the same action it is sought to partition personal property being furniture and fixtures used in the business building which is a part of the realty, is Rule 775 mandatory in requiring the "court to sell the personal property under execution and not through the receiver appointed to sell the real property, or is Rule 775 merely directory? In other words, does the district court have jurisdiction in the absence of objection by the parties at interest to direct the sale of personal property by the receiver appointed to sell the real property involved in the same litigation?
Answer: In our opinion the district court does have jurisdiction to direct the sale of the personal property by the receiver under the above circumstances.
The statutes giving the district court power to appoint receivers (Arts. 2293-2319) were not repealed by the Rules of Civil Procedure; and the rules themselves (Rules 695 and 695a) contemplate that receivers will be appointed to administer personal property as well as real estate. We feel that it is within the jurisdictional powers of the district court to order a sale of personal property through receivership.
Rule 775 does not purport to restrict the jurisdiction of the court. It provides a proper method of conducting the sale of personal property in partition proceedings, but it does not state that such method is exclusive of all others. Rule 776 expressly states that "no provision of the statutes or rules relating to partition shall ... preclude partition in any other manner authorized by the rules of equity ... " See Thomas v. Southwestern Settlement & Dev. Co., 132 Tex. 413, 123 S.W.2d 290 (1939) by Commission of Appeals. We feel that an order directing the sale to be made by the receiver would be valid and within the jurisdictional powers of the court under the circumstances stated in the question.
7 Tex. B.J. 281 (1944) reprinted in 8 Tex. B.J. 48 (1945).