25 W. Va. 148 | W. Va. | 1884
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
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-
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
• 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
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 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 ?
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
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
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
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 how
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
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
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-
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-
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
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
In this decree of March 21, 1884, the court also adjudges,
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
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.