Drake v. National Bank of Commerce

• Citation: 168 Va. 230
• Parties: LLOYD S. DRAKE v. NATIONAL BANK OF COMMERCE OF NORFOLK, AND W. L. PARKER, RECEIVER.
• Decision Date: 11 March 1937
• Court: Virginia Supreme Court

Page 230

168 Va. 230

LLOYD S. DRAKE v. NATIONAL BANK OF COMMERCE OF NORFOLK, AND W. L. PARKER, RECEIVER.

Supreme Court of Virginia, Richmond.

March 11, 1937.

Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. RECEIVERS — Appointment — Notice — Conclusiveness of Statements in Order of Court — Case at Bar. — In the instant case an order of the court was entered which set forth that upon the application of a named creditor, upon notice accepted by counsel for the former officers and directors of a dissolved corporation, a receiver was appointed for such corporation.

Held: That the order was a verity and not subject to collateral attack.

2. RECEIVERS — Appointment — Notice — Authority of Counsel to Represent Officers of Dissolved Corporation in Accepting Notice — Case at Bar. — In the instant case the lower court, upon application of the bank, a creditor, entered an order appointing a receiver for a dissolved corporation pursuant to section 3813 of the Code of 1936. The order recited that the appointment was made upon notice accepted by counsel for the former officers and directors of the corporation.

Held: That the authority of the counsel who accepted notice to represent plaintiff in error, president and treasurer of the corporation, was conclusively shown by his action in accepting the notice, by his subsequent connection with the case and by the silence of the record showing any repudiation of his action.

3. RECEIVERS — Appointment — For Dissolved Corporation — Necessity for Inter Partes Proceeding. — It is not necessary that the receiver to be appointed for a dissolved corporation under section 3813 of the Code of 1936, be appointed in a suit or inter partes proceedings for that purpose.

4. RECEIVERS — Appointment — For Dissolved Corporation — Effect of Appointment with Respect to Property of Corporation. — The appointment of a receiver for a dissolved corporation, under section 3813 of the Code of 1936, does not deprive the corporation of its property, but has the effect of preserving and protecting it.

5. CONTEMPT — Classes of Contempt — Civil and Criminal. — Proceedings for contempt of court are of two classes — those prosecuted to preserve the power and to vindicate the dignity of the court, and those instituted to preserve and enforce the rights of private parties. The former are criminal and punitive in their nature; the latter are civil and remedial.

6. CONTEMPT — Civil Contempt — Failure to Obey Order Appointing Receiver — Burden of Proof — Case at Bar. — In the instant case the receiver appointed for a dissolved corporation under section 3813 of the Code of 1936, reported that plaintiff in error, president of said corporation, had collected a sum of money from various insurance companies due to loss by fire, and that a demand made therefor by the receiver had been ignored. Thereupon the court issued an order requiring plaintiff in error to show cause why he should not be adjudged in contempt of court for failure to obey the order of court appointing the receiver, and after hearing evidence, found him guilty of contempt.

Held: That the instant case was a civil contempt proceeding and the burden of proof was upon plaintiff in error to show his inability to comply with the order of court.

7. APPEAL AND ERROR — Findings of Court — Weight Where Evidence Taken Ore Tenus. — Where evidence is taken ore tenus before the court, its conclusion on the facts stands upon the same plane as the verdict of a jury.

8. EVIDENCE — Questions of Law and Fact — Right of Jury to Disregard Uncontradicted Evidence — Testimony of Interested Witnesses. — While the jury is the judge of the weight of testimony and the credibility of witnesses, it cannot arbitrarily disregard the uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with other facts and circumstances appearing in the record, even though such witnesses are interested in the results of the litigation.

9. CONTEMPT — Witnesses — Contradiction of Defendant — Case at Bar. — In the instant case the receiver appointed for a dissolved corporation under section 3813 of the Code of 1936, reported that plaintiff in error, president of said corporation, had collected a sum of money from various insurance companies due to loss by fire, and that a demand made therefor by the receiver had been ignored. In answer to a rule to show cause why he should not be punished for contempt, plaintiff in error asserted that he had lost most of the money while hunting. It was contended that plaintiff in error was an uncontradicted and unimpeached witness and therefore his evidence was conclusive, but, among other things, it appeared that plaintiff in error was meticulous in his endeavor to show that he had the money on his person before the hunting trip, he constituted himself sole custodian of the money instead of permitting his alleged partner to share the responsibility of its safety, and did not notify this partner of the loss until two days after it occurred.

Held: That in a technical sense plaintiff in error stood as an unimpeached witness, but in view of the evidence (direct and circumstantial), on behalf of the receiver, he was not an uncontradicted witness.

10. WITNESSES — Corroboration — Repetition of Self-Serving Declaration — Case at Bar. — In the instant case the receiver appointed for a dissolved corporation under section 3813 of the Code of 1936, reported that plaintiff in error, president of said corporation, had collected a sum of money from various insurance companies due to loss by fire, and that a demand made therefor by the receiver had been ignored. In answer to a rule to show cause why he should not be punished for contempt, plaintiff in error asserted that he had lost most of the money while hunting. The testimony of his hunting companion, whom he told of his alleged loss, was the same as the testimony of plaintiff in error as to the details of the hunt.

Held: That the testimony of plaintiff in error's hunting companion as to the loss was merely a repetition of plaintiff in error's self-serving declaration, and was not corroboration.

11. CONTEMPT — Evidence — Weight and Sufficiency — Unbelievable Evidence — Case at Bar. — In the instant case the receiver appointed for a dissolved corporation under section 3813 of the Code of 1936, reported that plaintiff in error, president of said corporation, had collected a sum of money from various insurance companies due to loss by fire, and that a demand made therefor by the receiver had been ignored. In answer to a rule to show cause why he should not be punished for contempt, plaintiff in error asserted that he had lost most of the money while hunting. It was contended that plaintiff in error was an uncontradicted and unimpeached witness, and therefore his evidence was conclusive, but, among other things, it appeared that plaintiff in error was meticulous in his endeavor to show that he had the money on his person before the hunting trip, he constituted himself sole custodian of the money instead of permitting his alleged partner to share the responsibility of its safety, and did not notify this partner of the loss until two days after it occurred.

Held: That while standing alone plaintiff in error's evidence was apparently not inherently incredible, yet in view of the whole record the trial court did not err in its view that his statement was unbelievable.

12. CONTEMPT — Judgment — Entry in Chancery Order Book — Case at Bar. — In the instant case the receiver appointed for a dissolved corporation under section 3813 of the Code of 1936, reported that plaintiff in error, president of said corporation, had collected a sum of money from various insurance companies due to loss by fire, and that a demand made therefor by the receiver had been ignored. Thereupon the court issued an order requiring plaintiff in error to show cause why he should not be adjudged in contempt of court for failure to obey the order of court appointing the receiver, and after hearing evidence, found him guilty of contempt. It was assigned as error that all the proceedings in the cause were in chancery, and that the order and judgment finding plaintiff in error guilty of contempt were entered in the chancery order book, instead of the law order book.

Held: That there was no merit in the assignment of error.

Error to a judgment of the Court of Law and Chancery of the city of Norfolk, in a proceeding for contempt. Hon. Richard McIlwaine, Jr., judge presiding.

The opinion states the case.

Nathaniel T. Green and Henry Bowden, for the plaintiff in error.

Hugh W. Davis, for the defendants in error.

CAMPBELL, C.J., delivered the opinion of the court.

On the 31st day of January, 1936, the National Bank of Commerce of Norfolk filed in the Court of Law and Chancery of the city of Norfolk the following application for the appointment of a receiver for the Marine Equipment Company, Incorporated, a defunct corporation:

"Your petitioner, National Bank of Commerce of Norfolk, respectfully represents:

"1. That Marine Equipment Company, Incorporated, is a corporation duly chartered under the laws of the State of Virginia, February 9, 1927.

"2. That your petitioner is a creditor of said corporation in an amount exceeding $5,000.00 in excess of securities held by your petitioner.

"3. That the charter of said corporation was annulled on May 31, 1932, because of its failure to pay Registration Fees and Franchise Taxes for two preceding years, and that said corporation was thereby dissolved in the manner required by law.

"4. That the principal office of said corporation was in the City of Norfolk, Virginia.

"Wherefore, your petitioner makes application to this Honorable Court for the appointment of a Receiver or Receivers of and for such corporation, to take charge of the estate or effects thereof, and to collect the debts and property due and belonging...