However, a hearing should be had thereon not later than 10 days after the issuance of such order after due notice to the defendant. Rules 680 and 681, R.C.P.; Bargaimes v. Coke, Tex. Civ. App. 86 S.W.2d 653; Honea v. Graham, Tex. Civ. App. 66 S.W.2d 802; Smith v. State, Tex. Civ. App. 103 S.W.2d 805. It appears from the record that appellant Leon Holman and the appellee Onata R. Holman are husband and wife.
The court held in a case similar to this, McMlillan v. North American Building Loan Ass'n, Tex. Civ. App. 75 S.W.2d 161, that the appointment of a receiver on a hearing after notice is largely a discretionary matter with the trial court and should not be disturbed unless abuse is clearly shown. Such a rule is approved in Bargaimes v. Coke et al., Tex. Civ. App. 86 S.W.2d 653, and Central Nat. Bank et al. v. Dallas Bank Trust Co., Tex. Civ. App. 66 S.W.2d 474, and numerous other cases. But appellants contend that the payments provided for in the notes, deed of trust, and supplemental agreement "were reduced, limited, and modified" by the execution of a new contract signed by appellee on January 25, 1943, and signed and approved by Mrs. Roberta N. Myrick, president of Myrick Investment Company, on April 12, 1943, and that no default in payments existed under the terms of the new contract.
The injunction feature of the case and the later receivership of the property described have already been before this court on previous appeals. See Bargaimes v. Coke et al., 86 S.W.2d 653, and Bargaimes v. Lemons, 97 S.W.2d 511, for further facts relative to previous phases of this litigation. Plaintiff, Bargaimes, contended in his original pleading for injunction that he owed only a balance of $430.14 at the time the notices of foreclosure were posted, and that R. K. Coke, Jr., defendant in said action, had failed to pay some "assumed" taxes on the Lemmon avenue property, while in possession, in the sum of $477.83, which constituted a debt from Coke to plaintiff Bargaimes, thereby wiping out the $1,988 owing to such defendant.
The injunction has served its purpose. Jackson et al. v. Prætorians (Tex.Civ.App.) 83 S.W.2d 740; Bargaimes v. Coke, 86 S.W.2d 653, this day decided by this court. Consequently, since the appellees will have only such rights of foreclosure and possession as may be granted by the trial court in the trial upon the merits of the case, the issues involved in this appeal have become moot.