Colman v. W. Va. O.

• Decision Date: 22 November 1884
• Citation: 25 W.Va. 148
• Court: West Virginia Supreme Court
• Parties: Colman v. W. Va. O. & O. L. Co.-

25 W.Va. 148

Colman

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

-

Supreme Court of Appeals of West Virginia.

Submitted June 13, 1884.

Decided November 22, 1884.

1. If a corporation, which does a large amount of business, from the character of which it must often be required to bring suite and defend suits brought against it, is in its by-laws and action of its board of directors silent as to the duties of its president, and he is left thereby entirely untrammeled, he has as one of the powers inherent in the president of such a corporation authority to take charge of its litigation and to institute and carry on suits for it and in its name and to defend suits brought against it; and in so doing he may employ counsel who may bind the corporation by their action in the suit within the ordinary power of counsel. He has also the inherent power to apply for and obtain a writ of error for the corporation and in its name; and at his pleasure he may dismiss the counsel employed by him in such case as well as the writ of error. unless restrained from so doing by some action of the board of directors. (p. 168.)

2. When a vacancy occurs by death in the office of president of a corporation, the vice-president may act in his stead and perform the duties, which devolved on the president, though the law, under which the corporation was organized, did not mention the office of vice-president, but after providing for certain officers authorized the company to create other offices, and it did accordingly create the office of vice-president. Such a vice-president after the death of the president possesses all the inherent power of the president; and if he had the inherent powers to take charge of the litigation of the corporation and the other inherent powers of a president named in the first point of the syllabus, the vice-president after the president's death may exercise all or any of these powers, (p. 172.)

3. If a judgment be rendered against a party, no creditor of the party, whether he has a lien on his land or not, has a right to obtain a writ of error in the name of the defendant; and if a writ of error is obtained in the name of such defendant, he may at any time dismiss such writ of error with assent of the defendant in error, and no such creditor of the plaintiff in error has a right to object. (p. 174.)

4. No court on the application of such a creditor and on his showing, that he would be benefited by the reversal of such judgment, can properly enjoin the plaintiff in error from dismissing such writ of error. (p. 175.)

5. The fact, that the plaintiff in error is a corporation and is insolvent, and that on its application the court had directed the costs of such writ of error to be paid by its receiver out of funds in his hands arising from the renting of the land of such corporation, will not prevent the Appellate Court, before whom such writ of error is pending, from disregarding such injunction and dismissing the writ of error, if the plaintiff in error and the defendant in error have agreed, that it should be dismissed, and the court is asked to do so. (p. 176.)

Statement of the case by Green, Judge:

This was an action of debt brought by the plaintiff, Charles D. Colman, against the West Virginia Oil and Oil Land Company, a corporation of the State of Michigan, in the circuit court of Ritchie county. The summons was issued November 4, 1875. The debt claimed in it was $9,080.10. An affidavit was made the same day stating that "the nature of the plaintiff's claim was a certain promissory note executed at Monroe, Michigan, dated September 1, 1875, whereby the defendant promised to pay the plaintiff on demand $9,080.10 with interest from date at the rate of ten percent. per annum; and that the plaintiff was entitled to recover the full amount specified in this note with interest as therein stated; and that the defendant is a foreign corporation and a non-resident of West Virginia but that it has and owns property in Ritchie county, West Virginia. On this affidavit the clerk of the circuit court of Ritchie county issued an order of attachment against the estate of the defendant; and the plaintiff suggested, that W. Buchus, Hoffman T. Booth and F. W. Silman were indebted to the defendant, and also had effects of the defendant in their possession. These parties were summoned to answer as garnishees. The attachment was served on November 5, 1875, on a large amount of personal property of the defendant consisting of about a dozen boilers at different oil wells and nearly as many steam engines and more oil tanks with a number of pumps, tubing and mechanical tools of every sort in use in pumping oil, a large number of barrels of oil, office furniture, a large quantity of tubing and other personal property, also 1624 1/2 acres of oil lands described as lying in Ritchie county, West Virginia.

The declaration and the note above described were filed at December Rules, 1875. The summons was served in Ritchie county on B. S. Compton, the president of the West Virginia Oil and Oil Land Company.

Subsequently another order of attachment was issued and John P. Vinal was summoned as a garnishee. On April 28, 1880, the defendant pleaded nil debet, on which issue was joined. It also pleaded payment and the plaintiff replied generally and issue was joined. An amended declaration was filed stating that the note sued on was a contract made and to be executed in Michigan, and by the laws of that State ten per cent. could be lawfully demanded as interest, which demand is made as the interest stipulated for in the note sued upon. This amended declaration was demurred to; and issue joined on the demurrer, and defendant filed the miner pleas as to the declaration, and the like issues were joined. A specification of payments and sets-off were filed amounting to $13,096.25, and counter specifications of sets-off amounting to $32,684.62. Amended sets-off were atterwards filed amounting to $13,348.25. The court overruled the demurrer to the amended declaration. A jury was sworn to try the issues joined, who on November 18, 1881, found a verdict tor the plaintiff for $16,513.71, with interest from November 18, 1881. The defendant made a motion for a new trial. On March 10, 1882, the court overruled this motion and rendered judgment lor the plaintiff against the defendant for $16,513.71, with interest thereon from November 19, 1881, and his costs about his suit expended.

The trial lasted eighteen days; and it was warmly contested. The defendant took sixteen hills of exceptions. I do not deem it necessary to state what were these exceptions, except that in the sixth exception the substance of all the evidence offered by the plaintiff or by the defendant is set out at length; and among the evidence offered by the defendant was that of C. W. Penny, who testified among other things, as follows: "About September 1875, I was a director of the defendant company, one of the executive committee and vice-president." The record-book of the company, this exception also shows, was produced; and with reference to it the plaintiff as a witness on his own behalf testified:" The book now shown me is the record-book of the defendant company, in which the proceedings of its stockholders, directors and executive committee have been entered. I was secretary from July 1873, and might claim I am still, but don't care to." The plaintiff offered then the proceedings of the executive committee at a meeting held on September 1, 1875, recorded on pages 285 and 286 of said record-book, which was admitted as evidence. One portion of this entry is as follows: "On motion it was resolved, that this company allow and pay C. W. Penny for his services as vice-president and member of the executive committee a salary of $100.00 per month payable monthly and his expenses when absent from home in lieu of all other compensation, such compensation to commence on and from the first day of July, 1874."

Subsequently the court overruled a motion made to quash the attachment issued in this case and ordered a sale of the attached effects to satisfy the plaintiff's lien on the same for $16,518.71 with interest thereon from November 18, 1881, and the costs of the suit; but it being suggested to the court by a certified decree of the circuit court, of the United States for the district of West Virginia in the case of F. L. B. Mayhew &Co. v. The West Virginia Oil and Oil Land Company and others in equity, that Wm. E. Stevenson had been appointed a receiver of all the property and assetts of the West Virginia Oil and Oil Land Company mentioned in a deed of trust filed in said cause, it was ordered that no order of sale of said attached property shall take place at this time, the court not being fully advised as to the extent and power of this decree; and the hearing of the motion to sell the attached property was continued till the next term. A copy of the decree is made a part of the order. It states that on motion of the plaintiff and of parties who have proved debts in the cause it was ordered, that William E. Stevenson be appointed a receiver of all property and assetts of the West Virginia Oil and Oil Land Company mentioned and included in the deed of trust filed in the bill and the rents, issues, and profits thereof; and the agents and officers of the corporation were required to deliver possession of said property to the receiver; and the tenants in possession of said real estate were required to pay their rent to him; and such rents, as were paid in oil, he was authorized to sell; and after pay- ing costs of collecting, receiving and marketing the oils and carrying on the receivership he was to deposit the balance in The First National Bank of Parkersburg. He was to report every thirty days the amount of rent received by him and the disposition of oil received for rent; and the company and all its officers were enjoined from receiving any rent or exercising control over any property named in this deed of trust....