The opinion
STAYTON, Chief Justice.
This action was brought by appellants ' against John C. Brown, while receiver in charge of and operating the Texas Pacific Railway under appointment of the Circuit Court of the United States, to recover damages for delay in transportation and delivery of cattle shipped over the road while so operated. Pending the action the receiver was discharged; whereupon plaintiffs amended their pleadings, setting up the discharge of the receiver, and alleging facts showing that the property theretofore under his control had been returned to the company without sale, and greatly augmented in value by the expenditure of earnings of the road, which would have been subject in the hands of the receiver to the payment of such a claim as plaintiffs were asserting. That amendment asked that the railway company be made a defendant, and this was done.
The receiver and the railway company both set up his discharge, and the former asked that the action be discontinued as to him, while the railway company excepted to the petition generally and on the ground that the order discharging the receiver, which was made an exhibit to plaintiffs’ amended petition, relieved it from liability on any claim against the receiver which had not been prosecuted in the Circuit Court of the United States by intervention within the time prescribed by the order discharging the receiver.
The court abated the action as to the receiver, sustained the exceptions of the railway company, and dismissed the action.
The discharge of the receiver being made to appear by the pleadings of all the parties, the court properly discontinued the action as to him, for a judgment against him would have been fruitless. Brown, Receiver, v. Gay, 76 Texas, 444 .
The receiver having been discharged, and it being shown that assets had gone into possession of the railway company which would render it liable to plaintiff’s demand, the court should have overruled the exceptions filed in its behalf and have tried the case, the railway company under such circumstances being the proper defendant. Brown v. Gay, 76 Texas, 444 .
The liability of the railway company under the facts pleaded has been so often decided, it is not now necessary to again discuss that question. Railway v. Johnson, 76 Texas, 421 ; Railway v. Overheiser, 76 Texas, 437 ; Railway v. Griffin, 76 Texas, 441 ; Railway v. Geiger, 79 Texas, 13 ; Railway v. Miller, 79 Texas, 81 .
For the error of the court in sustaining the exceptions of the railway company and dismissing the cause, the judgment will be reversed and the cause remanded in so far as it affects that company. It is so ordered.
Reversed and remanded.
Justice Henry did not sit in this case.