Colman v. W. Va. O. & O. L. Co.

25 W. Va. 148 | W. Va. | 1884

Giuoen, Junas:

The first question in this' case is : Shall this Court dismiss it as agreed without any enquiry into the merits of the case on the writ of error ? Messrs. Sands and Van Winkle argue, that the case should not be dismissed, and base their argument partly on the assumption, that the evidence clearly shows collusion between the parties making the agreement, and partly on the assumption, that in making, agreeing to and directing this dismissal Penny, the vice-president of the company was acting in bad faith to the company, its stockholders and other creditors and with a view of promoting some personal interest of his own and in violation of the wishes of a majority of the directors. Are they right in this assumption ?

It seems to me that the evidence fails to establish such collusion and bad faith on the part of Penny. Of course the presumption in this case, as in all others, is that a party who does an act, which he is authorized to do, does it in good faith, until the contrary is made to appear. - What then is the evidence of bad faith and collusion in this case ? ' Penny himself swears, that “ he executed this agreement to dismiss this writ of error in good faith, believing it to be for the best interest of the company and its stockholders that the writ should be dismissed.” This would be the presumption of law, and this affidavit of Penny should be regarded as adding very little to this presumption, for if in fact he was in collusion with the defendant, Colman, and acted in bad faith, we should naturally expect such'fraudulent person to swear that he acted in good faith.

But does the evidence produced by Sands and Van Winkle establish their allegation that this misconduct of Penny was the result of collusion between him and Colman and in bad faith ? It seems to me it does not. What were the circumstances, under which this agreement between Penny, the vice-president of the company, and Colman, the defendant, to dismiss this writ of error was made? C. D. Colman nearly three years before had recovered j udgment in the circuit court of Kitchie county against the company for $16,514.17 with interest and costs after a long and bitter controversy, the trial before the jury lasting eighteen days. The record shows conclusively, that this judgment was not obtained by any collusion between Colman, the plaintiff, and the West Virginia Oil and Oil Land Company, but on the contrary, that his claim was resisted by the company in every possible way. The record also shows that Penny, the vice-president of the company, did all he could to defeat this claim, even appearing before the jury as a witness against Colman.

The bitterness of this controversy is shown not only in the length of time its trial occupied, but also by the fact, that the defendant took no less than seventeen exceptions to rulings and decisions of the court. There is no evidence before us indicating that Penny ever approved of the obtaining of the writ of error in this ease. The writ was obtained from a judge of this Court in vacation on February 22, 1888, upon the application of the West Virginia Oil and Oil Land Com-pauy by their counsel, Sands and VanWinkle, employed by the president of the company; JB. S. Compton; but there is no evidence, that Penny was consulted. For all that appears he may have disapproved and may then have thought, as he thinks now, that the interests of the company would not be promoted bv prosecuting a writ of error. lie may have then and always thought, either that there was no prospect of reversing the judgment ot the circuit court, or that even if it wore reversed for errors committed by the court in its rulings, the company would in no manner be benefited by such reversal, as ho may have thought that on a new trial a like judgment would be rendered in favor of Colman, and that he would then have a lien on all the property of the company real and personal from November 5, 1875, the day the attachment was levied, for he may well have believed, that this Court, though it might possibly reverse the judgment for misrulings of the circuit court during the trial, could not reverse the judgment refusing to quash the attachment. There is no evidence, that these were his views, when the writ of error was applied for; but there is on the other hand no evidence, that these were not his views.

It is true that there is proof by L. B. Dellicker, that in the fall of 1883, Penny told him, that the claim of Colman, on which the judgment was rendered, was a trumped up claim, and that anything the company might have owed him had been paid by Compton. But this was the question tried by the jury; and the claim was sot up before the jury, that the whole claim of Colman had been paid, and a great effort was made to prove it; but in the judgment of the jury the company and Penny, its vice-president, failed to prove this to their satisfaction. And though in 1883, Penny still held the same opinion of the claim, yet he might have thought, that on a second trial the company would still be Unable to prove it to the satisfaction of the jury, even if a new trial could be obtained from this Court, which could only be obtained, if this Court came to the conclusion, that the court below had erred as a matter of law in its rulings, and not because the jury drew a wrong inference from the facts.

Again, W. ~W. VanWinkle, one of the parties who object to the dismissal of this writ of error, does say, that during the trial of tins case in the court below Penny told him that Colman had no claim against the company in this suit, that his claim had been satisfied and more than satisfied. This was no doubt Penny’s belief then and may be yet his belief; but does it in any way indicate, that he acts in bad faith in dismissing this writ of error, if he has the right to dismiss it? 'May he not be well satisfied from the former trial, that he could not disprove to the satisfaction of a jury the prima fade case made out by Colman by his holding the note of the company for $9,080.10 with ten per cent, interest from September 1, 1875? He has made the effort once before a jury to prove what he may believe to be the truth, but he failed to convince the jury, and may he not well believe that he cannot strengthen the case of the company on a new trial, even if he could get one from this Court ? Declarations of this character made now do not satisfy me, that Penny acting in bad faith to the company, of which he was vice-president, in desiring this writ ot error dismissed.

• But there is evidence, which proves, that Penny, shortly before the motion was made to dismiss this writ of error, repeatedly said, that he had been urged to agree to dismiss the writ and had refused to do so. Iiis reasons for having refused to do so are not generally given ; but W. S. Sands, one of the parties objecting to the dismissal of this writ of error, states, that he did assign his reasons-to him. .In his affidavit he says : “In the latter part of February, 1884, he informed him, that the matter of the dismissal of this writ of error had been the occasion of considerable correspondence between Colman and his (Colman’s) wife and him (Penny); that the matter was1 then ended, because after consultation with some of the principal stockholders of said company and talking with Governor Borcman upon the subject he thought he had no right to dismiss the writ, and his doing so might lay him open to a great deal of adverse criticism.” He does not in this or any of these conversations pretend to say, that he (Penny,) thought, that it was best for the interest of the company to prosecute this writ of error. On the contrary he bases his refusal at that time on a doubt of his authority used on his bciug satisfied, from what Governor Borcman said, that he had no authority to do so, and on bis belief that, it lie did so, be would be subject to much adverse criticism. The tact, that he atterwards agreed to dismiss this writ of error, seems to me to show, not that he had been bribed or otherwise improperly influenced to do so, but rather that ho had changed his mind as to his authority to so act, and was willing to subject himself to adverse criticism rather than sacrifice the true interest of the company he represented. This seems to me to be but a charitable view of his conduct.

The only other evidence ottered to show collusion between Colman and him or bad faith in this matter on his part is, that the agreement to dismiss this writ of error signed by Colman and by him as vice-president and acting president and chief executive officer of the West Virginia Oil and Oil Land Company was all in the hand writing of the wife of Colman. I can hardly conceive why this proof was taken. It gives rise to no sort oí suspicion. It was not unnatural when the parties had agreed to enter into such a stipulation, that the paper should be drawn or copied by the wife of one of the parties. It is obviously totally immaterial by whom the agreement was written or copied, provided it was signed by parties competent to bind the plaintiff in error and the defendant in error.

This is all the evidence relied upon to show bad faith in Penny in this matter, so far as evidence has been taken in the case.

It is said though, that the dismissal of this writ of error would be in opposition to the wishes oí a majority of the hoard ot directors of the company. But no sort of proof is offered to sustain this allegation, nothing but a private letter Irom one of the members of the board of directors to W. S. Sands dated December 6, 1888. This letter states that a majority of the board oppose this dismissal; that there are five members of the hoard opposed to it. The letter is of course no proper evidence, the contents ot it not being sworn to as true. But suppose it was true. The board consisted of nine members, as appears from a document signed by all nine members of the board and on the trial of the case taken from the record-book of the company. Suppose then it was true as stated in this letter that on December 6,1883, five of the members of this board were opposed to dismissing this writ of error, and four of them were, as is to be inferred, in favor of dismissing the writ ot error. This shows that prior to December 6, 1883, the members of the board of directors had the question under consideration, whether or not this writ of error should be dismissed ; and then a bare majority of one out of nine members were opposed to its dismissal. This and the subsequent conversations of Penny with Sands, to which we have referred, show that the proposed dismissal of this writ of error was kept no secret from the members of the board of directors, but that it was freely discussed among them as well ashy the principal stockholders of the company.

The agreement to dismiss this writ of error was not actually entered into and signed by the parties for nearly three months alter this letter of Johnson’s was signed. Is it not perfectly natural to suppose, that some one member, who prior to December 6, 1883, was not willing on his them information to dismiss this writ of error, afterwards on fuller information changed his mind? It needed but one single member to change his mind to make a majority of the board of directors in favor of dismissal. If any maj ority of the board of directors really continued to disapprove of the dismissal, why has it not been made to appear? If a majority ot the board of directors really disapproved of this agreement of the acting president of the company, Penny, and Colman that this writ should be dismissed, why have they not long since met as a board and expressed their disapproval? No one ever questioned the right of a majority of the members of the board of directors of this or of any other corporation, acting as a board, to revoke the authority of its president or acting president, if he claimed such authority, to enter into such an agreement to dismiss a writ of error. They knew that he claimed this authority ; for a formal motion, based on this claim of authority and on this agreement, was made to this Court as early as March 5,1884. The proofs in this motion were filed up to June 13,1884, more than three months after-Avards. "Why in all this time did not the board of directors of this company meet and by their action direct this motion to dismiss this writ of error to be withdrawn, and forbid the acting president of the company to dismiss the writ of error ? The power of the board to so act was and is unquestionable. The failure to exercise this power satisfies my mind, that in point of fact a majority of the members of the board of directors of this company since March 1, 1884, have desired this writ of error tobe dismissed. But be this as it may, the only way, in which this Court or any one else can legally ascertain, what a board of directors desire in this or any other matter, is by the expression of their wish by som.e entry on their record-book while in session as a board.

But is is said, that the proceedings in the case of Francis L. B. Mayhew & Co. v. The West Virginia Oil and Oil Land Company and others in the circuit court of the United States for the District of West Virginia show, that this agreement to dismiss this writ of error was made by Penny by collusion with Colman and in bad faith. But there is nothing whatever in that ease, so far as any portions of it has been copied and filed in evidence in this case, which in any degree proves this allegation. It is not asserted or hinted at as a fact, that bad faith in this respect had been proven on the part of Penny; for while the court had issued a process of contempt against him and has in effect forbidden the parties to this agreement to dismiss this suit to carry out the agreement, yet.this is not based on any allegation, that Penny as acting president of the company would not inherently possess the power, but upon the ground, as we will presently show, that the board of directors ought to be forbidden to exercise this power as well as its acting president under the circumstances of this case. There is no intimation in any of these decrees, that it has been proven, that Penny is fraudulently colluding with Colman. I suppose, therefore, that'there is no proof of this character in that case.

It is true that a petition was filed in this case by W. I). Thompson and half a dozen other creditors of the "West Virginia Oil and Oil Land Company, in which it is in substance alleged, that Penny as vice-president of said company has made to one of these creditors the dishonorable proposal, that if he would give to him (Penny) $5,000 out of his claim, he (Penny) would do all he could to prevent any interference with his claim; and that the proposal was declined. This allegation would seem to be foreign to the objects of tilia petition and seems to have been intended mereiy as a slur on the general character oí Penny. There are allegations in this petition, somewhat indefinite it is true, which in effect amount to an allegation, that the said Penny and Colman had by collusion and with a view of fixing on the said company this debt of Colman charged to be fraudulent, in bad faith on the part of Penn}' as such vice-president agreed to dismiss this writ of error; and it asks an injunction to prevent this being carried out. ■ This injunction was granted but not on the ground of the truth of these allegations, there being, so far .as any portions oí the record in that case, which have been presented to us, show no kind of proof of these charges, the truth of the tacts stated i’n this portion not being sworn to, as is usual in the courts of West Virginia, when a bill or petition is presented asking ail injunction based on facts, which are not proven by exhibits or in some other manner. 'But doubtless this injunction granted in this case, so far as the record before us shows, without any proof of these allegations of bad faith and fraudulent conduct on the part of Penny was granted without even an affidavit to these facts, simply because the court, as I understand its decrees, regarded them as utterly immaterial, and considered that it was the duty of that court to prevent the dismissal of this writ of error, even it the board of directors had unanimously passed a resolution directing the dismissal of the writ.

Before deciding whether or not we should act upon these views let us consider what would have been the power of the president of the West Virginia Oil and Oil Land Company upon the assumption that no special- authority whatever had been conferred upon him, as in fact none was. Would he have had a right by virtue of his inherent power as president, if unrestrained by any order or action of the hoard of directors, to employ counsel to obtain a writ of error in this case; and after it was obtained, could he have discharged the counsel whom he had employed, and dismissed the writ of error? It seems to me that he did possess these powers. It must be admitted, that these inherent powers of presidents of corporations, that is, the powers not derived from the express action of the board of directors or those to he deduced from the continued exercise by the president with the silent acquiescence of the board of directors, are to a large extent undefined and are quite limited. But it does seem to me, that the decisions do show, that where a bank or any other corporation, which does a large amount of business, from the character of which it must often be required in the regular course of business to bring suits and to defend suits brought against it, is silent as to the duties and powers of its president, and he is entirely unrestrained by any action of the board of directors, it is a duty pertaining to the office of president of such a corporation to take charge, of the litigation of the corporation; and that therefore he lias the inherent power to institute and carry on legal proceedings for the purpose of collecting debts due to the corporation, and that he may in like manner appear and defend in any suits brought against his corporation. He has an inherent right to employ counsel for his bank either to institute or defend suits. Counsel whom he thus employs can bind the corporation by their action in the case within the ordinary powers of counsel; and this too, even though the circumstances show, that the president acted so improperly in employing the counsel, that he might properly be held responsible for his breach of trust in the employment of counsel. The following authorities sustain, I think, these conclusions: First National Bank of Wellsburg v. Kimberland, 16 W. Va. 555; Smith v. Lawson et al., 18 W. Va. 222, 229; Hodges Ex’or. v. First National Bank of Richmond, 22 Grat. 58; Savings Bank of Cincinnati v. Berton, 2 Metc. (Ky.) 240; American Insurance Company v. Oakley, 9 Paige 496; Munford v. Hawkins, 5 Denio 355; Alexandria Canal Company v. Swann, 5 How. (U. S.) 83; Chamberlain Churchhill v. Mammoth Mining Company, 20 Mo. 96.

It is true that in most of these cases the corporation was a bank, and the inherent powers of the president of the bank was the inquiry directly before the court. But in some of those cases the corporations were not banks, and from the reasoning, on which the decisions in these cases were based, it seems to me, that they apply as much to the president of any business corporation, whose business transactions are necessarily large, and who must have much litigation; and this would include such a corporation as the West Virginia Oil and Oil Land Company. It is true that in the Ashadot Manufacturing Company v. Henry Marsh, 4 Cush. 507, it was held that the president of that manufacturing company had no inherent authority as such president to institute that suit. But it will be noted that the corporation consisted of but three stockholders, one was the president, another was the clerk, and the third 'was Henry Marsh, the treasurer, who lived in Wisconsin. The other two stockholders, the president and clerk, lived in different counties in Massachusetts. The corporation in no way authorized Bush to bring this suit, which was brought against its treasurer. The court held in this case, that the president had no authority as such to institute this suit. No. reasons were given by the court for its decision and no opinion filed. It seems to me that this decision was right: as I infer that the corporation was not one of large business, or which was likely to have much litigation, but was so very restricted in its operation and consisted of so few stockholders, that it would not come within the principles thatT have deduced from the cases before cited.

Messrs. Sands and Van Winkle in their argument assert, that the. president of a corporation cannot confess a judgment without the sanction of the board of directors; and they regard the dismissal of the writ of error in this case as the equivalent of a confession of judgment in favor of Colman for $16,518.71, with interest from November 19,1881, and costs, this being the amount of thejudgmentin the court below. To sustain this position they refer to McMurry v. St. Louis Oil Manufacturing Company, 33 Mo. 375. This authority fails to support their position. In that case it was decided that a “judgment confessed by the president of a corporation without the service of process and without order or knowledge of the directors or company, and not setting forth the cause of indebtedness is void.” The court assign no reason for this conclusion but simply say they admit it to be true. The argument of counsel in the case on page 383 shows the probable reason of this holding. The law of Missouri forbids a corporation to create a lien on its property. The confession' of judgment before an action was brought violated this statute, as it was a creation of a lieu by the corporation. If however the president had after the institution of a suit against the corporation confessed a judgment for the corporation, though he had no authority conferred on him by the board oí directors, such' confession would have been binding on the corporation, for then the lien on the property would be considered as created bylaw and not by the voluntary act of the corporation. For the confession of judgment may have been made by the president for the company, because he could not avoid the plaintiff’s obtaining a judgment. That the president of a corporation may appear for it, when an action is pending against it and by the inherent power belonging to him as president confess a judgment for the corporation, which will be binding on it, was expressly decided in Chamberlin v. Mammoth Mining Company, 20 Mo. 96. The reason assigned for this, viz: that he is the proper party, on whom to serve process, does not seem to me sound. The true reason is, that he has the inherent power as president to conduct the litigation of his corporation, provided his corporation is one whose ordinary business gives rise to much litigation, as a bank or such a corporation as the West Virginia Oil and Oil Land Company.

But really there is no similarity between the confession of a judgment by the president of a corporation and the dismissal of a writ of error to a judgment obtained against the corporation. The first is the exercise of a power much greater than the second. If the president has a right to procure a writ of error to be awarded, it would seem to be a matter of course, that he could abandon it and direct its dismissal. This is clearly not the equivalent of a confession of judgment; lor when he has the writ of error dismissed, he simply leaves in force a judgment, which may have been obtained, as it was in this case, after a prolonged litigation, in a court of competent jurisdiction, not on confession but on the merits of the case.

The exact question we are now considering, the right ot the acting president of the West Virginia Oil and Oil Land Company to dismiss this writ of error, is not precisely covered by any adjudicated case, which I have seen. But if we can deduce from the decision, that the president of such a company as the West Virginia Oil and Oil .Land Company has by virtue of bis office the inherent right to manage the litigation of the company, when not forbidden by some action of the board of directors, and can employ counsel to defend suits, and can in his discretion procure a writ of error to a judgment against his company, as I think we can, then it must follow as a matter of course, that ho may order the dis-massal or consent and agree to the dismissal of the writ of error, without the express assent of the hoard of directors. But as they could have forbidden him to defend the suit for them, so they can by a resolution of the board prohibit him from dismissing this writ of error. It is obvious that as Compton, the president of the company, died in July 1883, all his powers as president forthwith devolved on Penny, the vice-president; and if Compton had the inherent power as president to dismiss this writ oí error, then this power on his death immediately devolved on Perry, the vice-president. This is a proposition so clear that it seems. unnecessary to refer to authority to sustain it. Put as the case, to which I would refer to sustain this view, otherwise throws light on the case before us, I will cite it.

In Smith v. Smith et al., 62 Ill. R. 493, it was decided : “In the absence of legislative enactments or provisions in their by-laws corporations act through their president or those representing him. When an act pertaining to the business of the company is performed by him, it will be presumed the act was legally done and binding upon the company. And as a general rule in the absence of the president, or when a vacancy occurs in the office, the vice-president may act in his stead, and perform the duties which devolve upon the president. In that case the charter did not mention a vice-president as an officr ol the company, but after providing for certain officers, it authorized the company to create other officers and the company by its by-laws declared there should be a vice-president and prescribed his duties. Held, that he might perform the duties imposed upon the president in the same manner and under the same circumstances as though his office had been created by the charter.”

Messrs. Sands and Van Winkle in their brief allege, that the statute laws of Michigan, under which the West Virginia Oil and Oil Land Company was chartered, provides that the affairs oí the corporation shall be managed by directors, that a corporation can only act in the manner pointed out by the organic law, and that the directors can only act collectively in their official capacity and not .as individuals. See Pennsylvania Lightning Rod Company v. Board of Education., 20 W. Va. 360, and for the statute law of Michigan, vol. 1, ch. 95, sec. 2844, p. 944 of Compiled Laws of Michigan. This section is as follows: “Thestock, property and affairs of such corporation shall he managed hy not less than three nor more than nine directors as the articles shall determine; one of whom shall be a resident of the State. They shall hold their offices one year and till their successors are appointed.” But the very next section provides : “That the directors of every such corporation shall choose one of their number president, and such other officers as their articles of association aud by-laws may require, who shall hold their offices one year, or until others are chosen in their stead.”

Now as the articles of association and by-laws of this corporation are not furnished though in the possession of Sands and Van Winkle, the opponents of this motion to dismiss this writ of error, we must presume that under this last section the board of directors not only elected a president but also a vice-president, that these articles of association must have provided for the election of a vice-president. The record-hook of the board of directors, it is proven, shows that the last election of officers by this board of directors was held October 1G, 1878, when B. S. Compton was elected president and C. W. Benny, vice-president. As Compton died in July 1883, Penny, who was by the statute-laws of Michigan above quoted then vice-president, succeeded to all his rights and duties as president. See Smith v. Smith et al., 62 Ill. 493. Among these rights was, as we have seen, a right to dismiss this writ of error; and, I doubt not, from that time he has entertained the idea that he would exercise this right; and from that time, till the motion was made to dismiss this writ of error, it was a subject of discussion among the directors and stockholders of this company. There is clearly nothing in the statute-law of Michigan above.quoted, which takes from the president of this company, or the vicerpresi-dent, when acting as president, the right, which by the common law he had, to dismiss this writ of error. Certainly the provision that “ the atiairs of the corporation shall be managed by a board of directors,” cannot possibly do so. For the affairs of corporations are everywhere managed by aboard of directors; but they act in almost all matters of necessity by their officers and agents; and certainly there is nothing in this statute to prevent this. Tf it were so construed, it would render it impossible to organize in Michigan any corporation, which could effectively carry on any business.

I propose now to consider whether the proceedings, which have been had in the circuit court of the United States for the district of West Virginia in the case of F. L. B. Mayhem & Co., v. The. West Virginia Oil and Oil Land Company, have deprived the company or its vice-president, O. W. Penny, of the right to dismiss this writ of error, which they had by the common law. In determining this question we must determine who has a right to sue out this writ of error; for it would seem'to follow as a necessary consequence, that he, who had a right to sue out this writ of error, or his representative would necessarily have a right to dismiss it; and consequently that no one, who did not have a right to sue out this writ of error, could have a right to dismiss it, unless he acquired such right directly from some one, who originally possessed it. Now it is an inflexible rule, that no one can sue out a writ of error, who is not a party or privy to the record, or not shown by the record to be prejudiced by the judgment. Bac. Abrid, Error b. Com. Dig. Pleader 3 b. 9. Thus bail can not have a writ of error to reverse the judgment against his principal, nor can the principal sue out a writ of error to reverse a judgment against the bail;' and both principal and bail can not unite in prosecuting a writ of error on a judgment against either of them. See Lancaster v. Raleigh, Cro. Car. 300; Bushell v. Galler, Id. 403; Smith v. James, Id. 575; Forrest v. Sandland, Hob. 72. The writ of error must always be ‘ brought in the name of and by the party, whose legal right has been affected. See Jacqueth v. Jackson, 17 Wend. 436.

.These authorities are referred to to show, what I suppose no one could doubt or controvei't, that the crodi-tors of the West Virginia Oil and Oil Laud Company, whether open contract or judgment creditors, could not have sued out a writ of error in this case in the name of the West Virginia Oil and Oil Land Company except with the consent and approbation of the plaintiff in error. No creditor of any one, whether a corporation or an individual, against whom a judgment has been pronounced, has a right in the name of such corporation or individual to prosecute a writ of error. This proposition is so fundamental, that T presume no one will contradict it. To permit my creditor at his pleasure and against my protest to prosecute a writ of error in my name to reversea judgment would be a novelty, which, I suppose, was never dreamed of as possible. If I choose to sue out a writ of error, I and I alone can do it; and after I have sued out such writ of error, I have a perfect and absolute right to dismiss my writ of error, and no creditor of mine can enjoin me from so doing or dispute my absolute right, though ho may believe, that' he is indirectly injured by my dismissing such writ of error. He may fancy that, if I should prosecute the writ qf error, the judgment againstme would be reversed, and thus alien be removed from my land, which would make his debt safer or perhaps make a subsequent lien of his debt against me on my land good. It may even be that my chances for reversing the judgment against me are so good, and my creditor would be so obviously benefited by such a reversal, that I ought not in good morals to disniiss my writ of error, or at least I ought in good morals, if he would pay the costs, to permit him to prosecute the writ of error in my name. But no one, I presume, would imagine I was under any legal or equitable obligation to continue to prosecute the writ of error; and no court could he found, who would enjoin me from dismissing my writ of error, if I chose; and no appellate court would refuse to permit me to dismiss my writ of error, whenever I chose. My dismissal of it, if it injured my creditor, would be damnum absque injuria.

Suppose we add to this case the fact, that after the suit, in which this judgment was obtained against me, on which I obtained this writ ol error, had been brought, and a lien on my property obtained by attachment, a creditor of mine had brought suit in chancery in another court, before this judgment was rendered, whose object was to entorce a lien by a deed of trust in favor of himself and others, which I had given on certain of my property, and that court had years after the institution of the common law suit against me, but before judgment was rendered in it, appointed a receiver to take possession of the land included in the deed of trust, which I liad executed, and to collect the rents. These facts would obviously in no way alter the case. I would still be the only person, who could sue out and prosecute a writ of error to the judgments had against me; and my creditors in the chancery ease could in no manner prevent me, if I thought proper, from dismissing the writ of error which I was prosecuting to this common law judgment.

Suppose further, that in this chancery suit other creditors of mine, who had obtained judgments afterwards against me petitioned the chancery court to be made parties to the chancery cause, so that they might participate in the proceeds of the sale of my real estate. Those creditors could not ask the Appellate Court to refuse to permit me to dismiss the writ of error, if I chose; and if they could not, the chancery court could not properly grant them an injunction prohibiting me from dismissing my writ of error, a motion for which was pending, when the application for such injunction was awarded. Under such a state of things it seems obvious, that the Appellate Court despite the granting of such injunction would nevertheless dismiss my writ of error.

Now if you will substitute for me the West Virginia Oil and Oil Land Company in this supposed case, you will have substantially the case now before us. This suit was-instituted November 4, 1875, in the circuit court of Ritchie county by C. 1). Colman against the West Virginia Oil and Oil Land Company; and a judgment was rendered in it March 10, 1880, for $16,513.71 with interest from November 19, 1881, and costs, which was secured by the lien of an attachment levied on all the real and personal property of the defendant in Ritchie county, this attachment having been levied November 5, 1875. Several years after the institution ofthis suit, but when it does not appear, a chancery suit was instituted in the circuit court of the United States for the district of West Virginia by F. L. B. Mayhew against the West Virginia Oil and Oil Land Company and others. The objectors to the motion to dismiss this writ of error have not presented to this Court a copy of the bill in this cause; but from the various decrees in the cause the objects of the chancery suit would seem to be to enforce by the sale of certain land of the West Virginia Oil and Oil Land Company the payment of a number of bonds, which were secured by a deed of trust on certain land of this company, and to pay out of the proceeds of this land the holders of all the bonds secured by this deed of trust. The plaintiff held sixteen of these bonds and the court on the 26th day of September, 1879, referred the cause to the commissioner to ascertain who held the other bonds; and on March 19, 1881, by a decree appointed a receiver to take possession of the property named in the deed of trust and rent out the real estate and collect the rents and pay the same into a certain bank to his credit as receiver. On February 1, 1883, three weeks before the granting of the writ of error in this ease, the court in the chancery cause upon the application of the West Virginia Oil and Oil Land Company made an order directing the receiver to pay out of the funds in his hands the cost of obtaining the writ of error to this judgment of the circuit court of Ritchie in favor of C. D. Colman and the cost of printing the record of this case; and these costs were so paid amounting to $219.00. The court continued to hold the property named in this deed of trust from March 19,1881, to the 21st day of March, 1884, when it made perpetual a temporary injunction, which it had awarded on March 5, 1884. This injunction had been awarded on the petition of W. D. Thompson and six other creditors having liens on the West Virginia Oil and Oil Land Company subsequent to the lien of Colman for his judgment of $16,513.71 with interest and costs, which lien dated back to November 5, 1875, and restrained Penny from dismissing or in any wise interfering with the prosecution of this writ of error; and in the same decree Sands and Van Winkle were directed to prosecute the writ of error. But before the writ was served, the motion to dismiss the writ of error had been made to this Court.

In this decree of March 21, 1884, the court also adjudges, that the protection of the property in the hands of the court, with which said company and its officers had been enjoined from interfering, required that the court should not allow the creation of unjust charges or liens against- it, and that it should aftord to the parties in interest an opportunity to have investigated by competent authority an alleged judgment, which the highest court having jurisdiction of the matter has decided was proper to be reviewed. Upon the principles, which I have laid down, however proper in a mere moral aspect of the case it may be, that the West Virginia Oil and Oil Land Company should under these circumstances .permit this writ of error to be prosecuted, yet as these creditors of this company had no right to require this company to prosecute this writ of error, they had no right by their petition to demand of the circuit court of the district of West Virginia, that it should prevent the West Virginia Oil and Oil Land Company from dismissing this writ of error, if the company thought proper so to do; and the fact, that that court awarded an injunction prohibiting the' dismissal of this writ of error, whether its action was right or wrong, and directing Sands and VanWiukle to prosecute the same, can not modify the case presented, if in our judgment the West Virginia Oil and Oil Land Company has an absolute right to dismiss this writ of error and to forbid Sands and Van Winkle to prosecute it further, as has been done. I can not see, that the fact, that the court at the instance of the West Virginia Oil and Oil Land Company advanced funds in the hands of the receiver in this cause to print the record in this ease and enable the West Virginia Oil and Oil Land Company to obtain this writ, can deprive this company of its absolute right to dismiss this writ of error at its pleasure. I can not see how the circuit court of the United States could by this or indeed in any way in such a suit, as is the one pending in that court, acquire a right to appoint persons to prosecute this writ of error against the protest of the plaintiff in error.

There is but one case, that I know of, in which the circuit court of the United States for the district of West Virginia could appoint or direct any one to prosecute a writ of error in the Appellate State Court; and that is where the plaintiff in error is a bankrupt, and the court is proceeding against him as such, and there has been a judgment in an inferior court against the bankrupt, which the .assignee or court thinks should be reversed. When the bankrupt law was in force, it expressly authorized the assignee to prosecute or defend any suit in the name of the bankrupt, and under this statute he could against the protest of the bankrupt prosecute a writ of error in his name; and the bankrupt could not dismiss the same. But I know no other case, where the plaintiff in a writ of error could be restrained from dismissing the writ at his pleasure, however certain creditors might conceive themselves to be thereby injured, or however he had procured the money to print the record and to obtain the writ. If the judgment were in his favor,’and he yet obtained a writ of error, then he could, I suppose, deprive himself of his right to dismiss his writ of error by transferring the claim to another. But when he is a defendant, against whom a judgment has been rendered, I know not how he could-be deprived of his absolute right to dismiss his writ of error.

In my judgment the writ of error in this case should be dismissed according to the agreement between the plaintiff in error and the defendant in error executed February 29, 1884.

Dismissed.

Case Details

Case Name: Colman v. W. Va. O. & O. L. Co.

Court Name: West Virginia Supreme Court

Date Published: Nov 22, 1884

Citation: 25 W. Va. 148

Court Abbreviation: W. Va.