Crumlish's Adm'r v. Shenandoah Yal. R. Co.. Fid. Ins.
| Decision Date | 17 April 1895 |
| Court | West Virginia Supreme Court |
| Parties | Crumlish's Adm'r v. Shenandoah Yal. R. Co. et al.Fidelity Insurance, Trust & Safe Deposit Co. v. Same. |
An executor or administrator can not sue or be sued out of the state conferring his authority.
After a foreign administrator has come into a cause by petitions to assert a demand of his decedent, the domestic, administrator comes by petition] to assert the same demand in his name. It is proper to recognize the latter as the proper party to represent the estate, and he takes the place of the foreign administrator. In such cases, orders or decrees rendered before the domestic administrator became a party do not bind! him.
A person who comes fori the first time into a pending cause by petition, and is a proper person to file such petition, may have prior erroneous orders in the cause reheard and corrected, upon prayer for that purpose in his petition, whether the case be proper for a petition for rehearing or bill of review in the case of a party to a cause.
One who subscribes and pays for stock in a joint-stock company is a stockholder, though he have no certificate of stock.
In a suit involving, among other things, a debt between two corporations, a decree is rendered for a certain sum in favor of the one against the other, ascertaining the amount of the liability on the basis of the amount of paid-up stock of the creditor company. That decree is res judicata and estoppel between the companies as to the amount of recovery, and also as (between the creditor company and its stockholders, and also between such stockholders as regards the amount of the recovery, but not as to the amount off paid-up stock in settling the rights of stockholders in the distribution of the fund arising from the debt so recovered.
There is no fixed rule in this state as to the mode of allowing compensation to a special receiver, whether by way of commission* or a fixed sum. Usually, when the fund is large, a lump sum is proper. The amount and mode of allowance are within the sound discretion of the court, under the circumstances of the particular case, subject to review on appeal.
Where a decree appointing a special receiver is reversed wholly, without any reservation, his office ceases with reversal.
A receiver has no power or title until he give the bond required of him.
A special receiver maybe allowed fair and reasonable fees paid to counsel necessary in the execution of his receivership. Courts ought to authorize employment of counsel where it is intended to give such power, and they are indisposed to allow such fees without previous authority to incur them given the receiver.
The amount of such counsel fees is within the sound discretion of the court, subject to review on appeal. Such fees are allowed to the receiver, not the counsel.
In the absence of authority previously given, expenditures to be allowed a special receiver must he reasonable, and such as are proper, essential, and necessary in the due and ordinary execution of his office, and such as were contemplated in his appointment and according to the nature of his business. In extraordinary cases, involving a large outlay of money, the receiver should always apply to the court in advance, for authority to make it.
Those claiming as stockholders the right to participate in the distribution of the assets in the winding up of the affairs of a private corporation must produce some satisfactory evidence of a present, subsisting interest.
A corporation has but one asset; namely, a decree for a certain sum against a railroad company, and a decree for the sale of its railroad, etc., to satisfy the same, after first satisfying prior liens and charges to a large amount. The creditors and owners of a greater part of the stock may, if they see fit, give to outside parties, out of the amount decreedtothem, a bonus for a guaranty that at the commissioner's sale the railroad, etc., shall be made to bring at least enough bo pay their claim, as well as the prior liens and charges. And, if such bonus is made to appear to have been that without which neither creditors nor stockholders would have received anything, then the court will charge the fund thus brought into the cause with the payment of such bonus, and, after the payment of the creditors, distribute the surplus, if any, among the stockholders according to their respective interests.
The payment of large contingent fees can not be provided for by the court, no matter how great and peculiar their merit may be. That, as far as lawful, must be left as a matter of express contract between client and attorney.
The practice of allowing to trustees, complainants and receivers, and their counsel, large and extravagant counsel fees and commissions, payable out of trust funds under the control of the court, commented on and disapproved.
W. M. Stuart, Jr., U. L. Boyoe and Barton & Boyd for appellants.
Holmes Conrad, Marshall McCormick, D. B. Lucas, Frank P. Clark and A. W. McDonald for appellees.
W. M. Stewart cited 36 W. Va. 465; 85 Pa. 470; 29 Graft 763; 80 Va. 105; 27 W. Va. 1; 16 Md. 446; 11 S. E. Rep. 1063; 14 Gratt. 229; 14 Mass. 243; 17 Mass. 368; Well's Res Adjudicata 316; 33 Cal. 394; Cook's Stock & Stockholders, § 10; Gluck & Becker, Receivers of Corporations 36; High on Rec. § 121; 29 Gratt. 602: 21 W. Va. 124; Code, c.'133,.s. 28.
R, T. Barton cited 20 Am. & Eng. Enc. Law 111; L. R. 14 Eq. 322; Kerr on Rec. 221; 28 W. Va. 623; 33 W. Va 761; 37 W. Va. 143, 486, 571; 35 W. Va. 518; 10 W. Va. 250; 131 U. S. 332; 33 W. Va. 152; 36 W. Va. 465; 33 W. Va. 158; 19 W. Va 167; 16 Gratt. 116; 24 Gratt. 548; 22 Gratt. 769; Code, c. 129, s. 7; 2 Dan'l Oh. Pr. 1296; 80 Va. 191; 12 W. Va. 213; 9 W. Va. 434; 10 W. Va. 298; 20 W. Va. 244; 78 Va. 164.
Marshall McCormick cited 85 Va. 9; 131 U. S. 319; 135 U. S. 533; 32 W. Va. 244; 21 Gratt. 373; 76 Va. 160; 1 Bart. Ch. Pr. 492; 16 W. Va. 378; 93 IT. S. 352; 113 IT. S. 116; 27 Gratt. 928; 7 W. Va. 390; 75 Va. 508; 76 Va. 200; 1 Bart. Ch. Pr. 271; 2 Wall. 94; 95 U. S. 160; 31 Gratt. 550; 80 Va. 30.
Holmes Conrad cited 128 Mass. 194; 28 W. Va. 623; 32 W. Va. 244; 33 W. Va. 761, 775; 32 W. Va. 271. D. B. Lucas cited 36 W. Va. 465; 33 W. Va. 159; 26 W, Va. 710; 14 W. Va. 1; 21 W. Va. 698; Code, a 54, s. 82, par. 2; 16 S. E. Rep. 564; 13 W. Va. 314; 10 W. Va. 250; 20 W. Va. 331; Id. 230; 25 W. Va. 692; 29 W. Va. 695; 26 W. Va. 583, 710; 22 W. Va. 509, 510; 101 U. S. 688; 26 Bar. 88; (16 S. E. Rep. 544; 35 W. Va. 103; 33 W. Va. 152; 135 U. S. 544; Herman, Estop. 165; 33 W. Va. 159, 761, 774; 36 W. Va. 465; 14 W. Va. 1; 21 W. Va. 60S; 1 Greenl. Ev. § 558; 2 Dan'l Ch. Pr. 1321; 8 W. Va 174; 10 W. Va. 298; 12 W. Va. 371; 27 W. Va 387-92; 35 W. Va. 36, 39; Herm. Estop. §§ 1022, 1039, 800.
A. W. McDonald cited 1 Smith Lead. Cas. 997; 19 Am. & Eng. Enc. Law 271; 33 W. Va 761; High. Rec, § 806; 6 Paige 213; 20 Am. & Eng. Enc. Law 76.
For statement of facts see opinion of Brannon, Judge, page 648.
Holt, President:
In reviewing this case I have patiently followed the points involved down to minute details with an expenditure of time that would be manifest by giving such details, but that would encumber this opinon with a mass of statements and figures which could answer no useful end.
The conclusions reached are the following: First. The Jewett receipts for payment of one hundred shares of stock are already in the name of John P. Logan, by certificate No. 6, for one hundred shares, issued to him as assignee, on the 19th day of February, 1873. Second. There is a high degree of probability that the receipts of payment taken in the name of R. D. Barclay made for stock, say twenty thousand dollars by Col. Thomas A. Scott from 22d September, 1870, to 9th August, 1872, are not, and have not been since the 15th day of September, 1874, subsisting outstanding evidences of his ownership, legal or equitable, of that amount or any amount of the stock of the Central Improvement Company. At any rate, from some cause, whatever it may be, Col. Scott's estate is not made to appear now to be the owner of any stock in the Central Improvement Company. Third. The Central Improvement Company owed its creditors the sum of three hundred and eighty one thousand nine hundred and ninety six dollars and seventy one cents. It had a decree against the Shenandoah Valley Railroad Company for seven hundred and ninety one thousand three hundred and thirty eight dollars, with interest from the 1st day of July, 1890, till paid and it had nothing else; but there were liens and charges against the railroad, etc., of the railway company decreed to be sold, of higher dignity, and first to be paid, amounting to six million and six hundred thousand dollars. This was in the stringency of 1873, and, unless some one could be induced to bid something over the amount of this prior lien, then the Central Improvement Company would have of assets not one cent. All the creditors thought it wise and best to give parties who were able to buy a bonus of two hundred thousand dollars, afterwards reduced to one hundred and sixty thousand dollars, to make the property bring seven million and one hundred thousand dollars or over. One hundred and thirty four out of one hundred and thirty eight in value of the stockholders thought this the best the only thing to do, and did it in an informal way. The only one who complains *is one stockholder, who has about...
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