(dissenting).
I cannot concur in the majority opinion and am compelled to dissent therefrom.
The appeal was not perfected until the record was filed in this Court on March 26, 1947. This question is important because it is determinative of whether the case was still pending in the trial court at the time of the reappointment of the receiver after the defendant had been given notice and an opportunity to be heard.
Appeals from interlocutory orders are governed by the provisions of Rule 38S, T. R.C.P. Such appeals are perfected by the doing of two things: (1) Filing an appeal or supersedeas bond; (2) filing the record in the Court of Civil Appeals within twenty days from the date of rendition of the order. An appeal is not perfected until both have been done. Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956.
The record shows that when the petition for the appointment of a receiver was presented to the trial-judge, on March 7, 1947, he made an order appointing a receiver, to remain in effect until further orders were entered. He further provided that the defendant should appear on March 14, 1947, and show cause why the receivership and injunction should not be continued in full force and effect pending final trial and the clerk was ordered to issue notice. Pursuant to the notice defendant (appellant) and her attorney were present in court but declined to put in an appearance. On that date the receiver made bond and took the oath of office. On March 12, 1947, the trial judge fixed the amount of the su-persedeas bond at $3,000, and on that date appellant filed her supersedeas bond and also a cost bond, but did not thereby perfect an appeal, as heretofore pointed out.
On March 14, 1947, the trial court ordered all property returned to appellant.
On March 19, 1947, appellant, though present by counsel, again declined to appeal and the receiver was re-appointed, with orders to again take charge of the property. The receiver qualified under this second appointment and again the order was superseded by appellant’s giving a second supersedeas bond on March 21, 1947, and the receiver was again ordered to return the property to appellant. An appeal from both of the orders appointing a receiver was perfected on March 26, 1947, by filing the record in this Court.
It is plain that appellant was afforded an opportunity for a hearing before the receiver was re-appointed, on March 19, 1947, which opportunity, she declined.
Appellant is not in a position to here complain that the receiver was appointed originally at an ex parte hearing and without notice to her, when after notice and an opportunity for a hearing, which she declined, the receiver was re-appointed, and all of this before an appeal was perfected to this Court. As was said by Justice Fly in Cotton v. Rand, Tex.Civ.App., 92 S.W. 266, 267:
“If, however, the action was illegal in the first instance, appellants went into court within two days after the court made the order appointing the receiver and filed motions to set aside and vacate the order, and on those motions there was a full hearing of evidence and argument on the disputed points, and the court adhered to its action and in effect reappointed the receiver. Appellants have had their day in court, had a fair hearing and have come before this, court on a full statement of the facts upon which the court acted. They have had the benefit of everything that they possibly could have obtained, had they been before the judge when the original appointment was made.”
There seems to be no Texas case on all' fours with the case at bar. The only case directly in point, that I have been able to find, is that of Supreme Council of Royal Arcanum v. Hobart, 1 Cir., 244 F. 385, 390. There it is said:
“As to the claim that there was no sufficient notice to the defendant, the appointment was made subject to be vacated or modified eight days later, after hearing any party aggrieved, and was not to become permanent until such hearing. While the allegation in the affidavit which accompanied the bill, that the defendant’s funds *431were in imminent danger of being removed out of Massachusetts, is not so specific as to facts as might be desired, there has been no suggestion that it was without foundation in fact, and it so far indicated immediate danger of irreparable injury as to prevent a finding that there was any abuse of discretion in entering the decree of April 13, 1917. After appearing and being heard before the hearing appointed for April 21st, and after having obtained thereby the modifications effected by the decrees of April 17th and April 20th, we could hardly regard the defendant as in a position to claim that any omission of due notice to it in the proceedings has seriously prejudiced its rights.”
We are here asked to vacate this receivership and thus compel the trial court to give appellant a hearing before the appointment of a receiver. The trial court has already tendered to appellant a hearing which she has declined. She is certainly trifling with the court to here, in effect, ask us to order the trial judge to do that which he has already attempted to do and which ■she has already refused to accept.
It is true that the trial judge erred in appointing a receiver without notice and .at an ex parte hearing. However, after appellant had superseded this order and all ■of her property had been returned to her, an opportunity for a hearing on the matter -of the appointment of a receiver was tendered to her and declined by her, how is this Court going to believe that her real -complaint is that she has not been given an opportunity to be heard.
The majority opinion states that there is no provision in either our statutes or our ■court rules for a “show cause order” in receivership matters. This is true, and it is equally true that there is no rule against .a trial judge issuing a “show cause order” in such matters. .
Art. 2319, Vernon’s Ann.Civ.Stats., provides that “In all matters relating to the .appointment of receivers, and to their powers, duties and liabilities, and to the powers •of the court in relation thereto, the rules •of equity shall govern whenever the same .are not inconsistent with any provision of ■.this chapter and the general laws of the State.” There is certainly nothing inequitable about a trial judge issuing a “show cause order” in a receivership case and giving an aggrieved party an opportunity to be heard without the necessity of going to the expense and delay of an appeal to secure such right.
It is always desirable if possible to give a trial court an opportunity to correct an error and save the’ litigants the expense and hardship of an appeal.
It is probably true that if an appeal had been perfected before an opportunity to be heard had been given appellant, it would then have been too late for the trial court to have corrected his error, as the matter would have been removed from his hands and placed in ours, but where appellant was given an opportunity to be. heard, while the matter was still in the hands of the trial court and declined by her, she should not here be heard to complain because the trial court acted without notice and hearing in appointing a receiver.
Borderline cases are bound to' be presented to trial judges in receivership cases. Where the trial judge feels compelled to appoint a receiver without notice and at the same time sets the matter down for -an early hearing, a prompt remedy is afforded an aggrieved party if such appointment' has been made improvidently. The. trial judge can, in only a few days after such appointment, set the same aside with a minimum amount of damages and a better remedy is afforded the aggrieved party'than the taking of an appeal to this Court. I am unable to see why it is any better for this Court to discover that the appointment of a receiver without notice was wrongful than for such fact to be discovered by the trial judge himself.
It is true that in some instances the aggrieved party may very much desire the delay caused by an appeal because he may well know that while it was error to appoint the receiver without notice, that upon a hearing, cause for fhe appointment of a receiver may easily be shown, and therefore his best weapon is that of .delay. Court rules should be for the purpose of expediting the business of the court rather than for its delay. The fact- that a re*432ceiver should not have been appointed without a hearing should not give the adverse party the right to delay that hearing for several months by means of an appeal, where the trial judge is ready and willing to proceed with the hearing.
I think the judgment of the trial court should be affirmed.