Goff v. Goff

• Decision Date: 05 December 1903
• Court: West Virginia Supreme Court
• Parties: GOFF . v. GOFF.

46 S.E. 177

54 W.Va. 364

GOFF .

v.GOFF.

Supreme Court of Appeals of West Virginia.

Dec. 5, 1903.

DIVORCE—ALIMONY—RECEIVER—BOND.

1. In a suit for divorce, the question of allowances to the wife for maintenance pendente lite, and to enable her to carry on the suit, to be paid by the husband, is within the sound discretion of the court, or judge in vacation, under section 9, c. 64, Code 1899; and the exercise of this discretion, which is a very broad one, will not be reviewed unless it is made to appear that it has been grossly abused.

¶ 1. See Divorce, vol. 17, Cent. Dig. §§ 613, 770.

2. Where, in a suit for divorce and alimony by a wife, the allegations of the bill and the record show the defendant to be the possessor of an estate worth from $75,000 to $80,000, composed largely of real estate, and the defendant has been enjoined in the suit from disposing of any of his real estate, and has responded to an order in the cause requiring him to pay a specified sum for temporary maintenance of plaintiff, and expenses of carrying on her suit, held, the appointment of a special receiver by the judge in vacation to take charge of the personal property of the defendant is an abuse of judicial discretion.

3. When a trust company, which is properly doing business under the laws of this state, shall be appointed a special receiver in any case or proceeding, it is not required to give bond. The capital of such company, together with any deposits required to be made by it with any officer or officers of the state, whether such deposits be a part of said capital or not, are to be taken and considered as the security required by law for the faithful performance of its duties.

(Syllabus by the Court.)

Appeal from Circuit Court, Randolph County; John Homer Holt, Judge.

Action by Louise L. Goff against Charles P. Goff and others. From decree and orders entered, defendant Goff appeals. Reversed.

W. B. Maxwell and L. Greynolds, for appellant.

C. W. Dailey, E. D. Talbott, and T. P. R. Brown, for appellee.

McWHORTER, P. On the 10th day of February, 1902, Louise L Goff presented her bill in chancery, in vacation, to the judge of the circuit court of Randolph county, verified by her affidavit, against her husband, Charles P. Goff, Charles M. Kittle, the Elkins National Bank et al., debtors of said Charles P. Goff, praying for a divorce from bed and board against the said defendant Goff, for cruel and inhuman treatment, reasonable apprehension of bodily hurt, and other matters alleged and set out in her bill, and for alimony and for money to carry on and prosecute her suit, and praying that the court would commit the custody, care, and management of the said defendant Goff's large estate to some competent person, that the same might be protected and preserved in the interest of plaintiff and of said Goff, and others who might have an interest therein; that the defendants who were debtors of said Goff and all other persons be restrained and enjoined from paying to him any of the money they owed him; that a deed made by Goff to the defendant Kittle, dated the 20th of August, 1901, for an undivided moiety in the undivided one-fourth interest owned by said Goff in the 6, 606-acre tract of land known as the "Goff-Arnold Land, " for the reasons set out in the bill, be annulled, vacated, and set aside, and the said Kittle enjoined and restrained from selling or conveying the interest in said land so conveyed to him by Goff; that the gift or supposed gift of the diamond ring by said Goff to Kittle be canceled and set aside and declared null and void, and that Kittle be required to surrender and deliver possession of said ring to some suitable person, to be named by the court, to be held by such person to answer any further order or charge touching the same, and that the court will make such provision for the maintenance of said Goff out of his estate as might be proper; and that Goff be enjoined and prevented from imposing any restraint upon the personal liberty of the plaintiff; and for general relief. Whereupon the judge made an order granting the injunction prayed for, and appointed Kent B. Crawford a receiver to take charge of the diamond ring, and directed the defendant Kittle to surrender the same to Crawford, who was required to give bond, in the penalty of $800, to have the ring forthcoming to answer any future order of the court respecting the same, and further ordered the defendant Goff to pay the plaintiff $500, to enable her to carry on her suit, and for temporary maintenance. On the 22d day of February, 1902, the judge of said court made another order in said cause, reciting that plaintiff had presented to him in vacation her bill, verified by affidavit, praying for a divorce from bed and board against the defendant Goff, for alimony, and other matters of relief therein specified, and that it appeared that process to answer said bill had been regularly sued out of the clerk's office of said court, and duly served upon all the defendants, and reciting that the vacation order made on the 10th of February, 1902, inadvertently directed said Goff to pay to the plaintiff $500 to carry on this suit, and for temporary maintenance, without any notice to said Goff of plaintiff's intention to ask for said sum. On motion of plaintiff, it was or dered that that part of the order which directed the payment of said sum of money be set aside and annulled; and it further appearing from affidavits filed that the defendant Charles P. Goff on the 10th of February, 1902, left his residence and the town of Beverly, and that the only persons occupying his residence were defendant Charles M. Kittle and a small boy, who were absent from the premises a great part of the time, leaving the house and effects therein uncared for and unprotected, it was further ordered that the defendant Charles P. Goff, his agents, servants, and representatives, be restrained and enjoined from preventing the plaintiff from returning to said residence and dwelling therein, if she should elect so to do, for the purpose of preserving and caring for the same, and the household goods, furniture, and chattels therein, with full power to control in said house as to its occupancy and management for the said purposes during the absence of said Goff from said residence. The restraining order of February 10th was so modified as to permit the debtors of Goff to pay their indebtedness to the general receiver, if they should elect so to do, taking proper receipts therefor from said receiver, and provided that a copy of said order of the 22d Of February be served upon the defendants in the cause. The defendants Charles P. Goff and Charles M. Kittle filed their separate answers. A large number of depositions were taken and filed in the cause by both plaintiff and defendant Goff, and on the 16th day of May, 1902, the cause was heard in court upon process duly executed upon all the defendants, the answers of Goff and Kittle, and general replications thereto, and the depositions and exhibits taken and filed in the cause, and upon the orders theretofore entered; but, the court not then being ready to dispose finally of the cause on its merits, it was heard upon the motion of the plaintiff for an allowance for temporary maintenance, and also for expenses and attorney's fees in the prosecution of the suit, when it was ordered and decreed that plaintiff be allowed the sum of $60 per month, beginning January 21, 1902, for her support, and $500 on account of costs and attorney's fees in prosecuting her suit, to be paid out of moneys coming into the hands of the general receiver of the court from payments made to him by Goff's debtors. It was further ordered that any debtor of Goff might pay to plaintiff moneys not exceeding the amount specified in the order, and take a receipt from plaintiff for such sum. And on the 15th day of July, 1902, in vacation, the judge of said court, in pursuance of a notice served upon defendant Goff, on the 7th day of July, heard the motion of plaintiff to appoint a special receiver in the cause, to take charge of the personal property of the defendant Goff, when the notice of such motion was filed, together with the affidavit of plaintiff. Louise L. Goff, which motion to appoint suchreceiver was resisted by the counsel of Goff, who was present at the hearing. Upon the hearing of the motion the court appointed the Trust Company of West Virginia, at Elkins, special receiver of the personal property and effects of defendant Goff, with power and authority to collect such outstanding indebtedness as was due or might become due, of said Goff, and especially the claim due from Mabie, McClure, and Stephenson, mentioned in the affidavit of plaintiff; and the judge being informed by counsel for defendant Goff that they had in their hands sufficient money furnished by Goff to pay such alimony as had been awarded to plaintiff by the court, and put in their hands for that purpose, they were directed to pay the same to plaintiff or her attorneys. These are all the orders or decrees entered in the cause.

The defendant Goff appealed to this court, and insists that the court erred in entering each and all of said orders and decrees. The first order that was entered on February 10, 1902, in so far as it allowed $500 to the plaintiff before the issuing and service of process in the cause, was null and void to the extent only of such allowance. "The judge had no...