Highland. v. Empiric Nat'l Bank Of Clarksburg., (No. 7669)

• Decision Date: 16 December 1933
• Docket Number: (No. 7669)
• Citation: 114 W.Va. 473
• Court: West Virginia Supreme Court
• Parties: Gertrude M. Highland et al. v. Empiric National Bank ofClarksburg et al.

114 W.Va. 473

Gertrude M. Highland et al.

v. Empiric National Bank ofClarksburg et al.

(No. 7669)

Supreme Court of Appeals of West Virginia.

Submitted November 9, 1933.

Decided December 16, 1933.

allo-

1. Judges

The interest of a trial judge that authorizes the bringing of a suit in an adjoining circuit within the meaning of Code, 56-1-1 (g), is such interest as disqualifies him within any of the provisions of Code, 51-2-8.

2. executobs and administbatobs

The general powers of coexecutors are joint and several, hut when special duties involving the exercise of judgment and discretion and beyond those duties normally required in the administration of estates are required of: them under the terms of the will, such duties partake of the nature of a trust and must be exercised jointly.

Appeal from Circuit Court, Ritchie County.

Suit by Gertrude M. Highland and others against the Empire National Bank of Clarksburg and others. From an adverse decree, the defendants appeal.

Affirmed.

Maxwell, President, dissenting.

Sperry & Snider, H. Budkin Taylor, Steptoe c& Johnson, Stanley C. Morris, and James M. Guiher, for appellants.

E. A. Bowers, S. A. Powell and L. A. Henderson, for appellees.

Kenna, Judge:

Virgil L. Highland died August 9, 1930. By his last will and testament dated March 20, 1917, taken in conjunction with a codicil dated August 9, 1930, he named the Empire National Bank, Melvin G. Sperry and Cecil B. Highland as his executors. At the time of his death, Virgil L. Highland was one of two voting trustees of the common stock of Clarksburg Publishing Company under the terms of an agreement dated the 30th day of June, 1927. Under the terms of this agreement, the power to name a trustee in case of vacancy in that office brought about by the death, resignation, etc., of Virgil L. Highland devolved upon the owners of a majority of the "Class A" common stock of the company. A majority of that stock passed to the executors of Virgil L. Highland under the terms of the will. The executors named in the will qualified on August 21, 1930. On September 9, 1932, a suit was brought in Harrison County by exactly the same plaintiffs against the Empire National Bank and Melvin G. Sperry in their representative capacities, for the purpose of having a trustee appointed to take the place of Virgil L. Highland under the voting trust agreement just mentioned. Up to that time no successor to Virgil L. Highland had been named. On September 13th, Sperry and the bank, by writing, designated Sperry as trustee in the voting trust agreement to take the place of Virgil L. Highland. This writing was dated August 10, 1932. On September 17, 1932, an injunction issued in the Harrison County suit restraining the defendants from recognizing Sperry as such voting trustee. On November 15, 1932, the judge of the circuit court of Harrison County having declared himself disqualified to hear the cause on account of relationship within the degrees prohibited by statute to a person holding stock in the defendant corporation, the cause pending in the circuit court of Harrison County was dismissed. Immediately, a like suit was brought in Ritchie County, with added defendants, and a temporary injunction substantially the same as that having theretofore been awarded in Harrison County, was entered in that circuit court. The bill was filed by order of court November 15, 1932, and process made returnable to December Rules, when it was returned, having been executed on the bank, Sperry and J. Hornor Davis. The answer of the bank and Sperry was filed at December Rules, and there was a decree nisi as to the defendant served and not answering. On November 19, 1932, the bank Deison, Morrison, Geppert and Powell along with Sperry appeared pursuant to notice and moved to dissolve the injunction. This motion was continued to December 19, 1932. On that day, it was again continued to January 5, 1933, on account of the illness of Mr. Steptoe of counsel for defendants. At January Rules, 1933, the bill of complaint was taken for confessed as to Deison, Davis, and Morrison and the cause was set for hearing. On January 5, 1933, the bank appeared, along with Sperry, and moved that the court act upon the motion to dissolve the injunction. This the; court refused. On February 21, 1933, the demurrer of Morrison, Geppert and Powell and of Sperry and the bank in their representative capacities was filed. On May 19, 1933, the court overruled the motion to dissolve the injunction, overruled all of the demurrers of the defendants and on the motion of the plaintiffs to submit the cause on the merits, gfter requesting the defendants to assign reasons for not doing so, if any reasons they had, proceeded to find for the plaintiffs on the merits of the cause, and to enter a final decree nullifying the paper purporting to make Sperry the voting trustee, appointing Anthony F. McCue as such in the room and stead of Virgil L. Highland, perpetuating the injunction, and retaining the cause upon the docket for such proceedings as might prove necessary. From this decree, certain of the defendants below prosecute this appeal.

The first assignment of error is that the circuit court of Ritchie County was without jurisdiction to entertain the proceeding brought there. The circuit judge in Harrison County had declared himself disqualified because he was related to one of the stockholders of the Empire National Bank, a party to the suit, within the degrees prohibited by the statute, Code, 51-2-8, which reads, in part, as follows: ''When such judge is * * * related to either of the parties, * * * or if, at the time of the institution of the suit, or at any time before its final termination, he, his wife, or any party or parties related to him in the degree hereinbefore specified, is a stockholder or officer, in any stock company or corporation which is a necessary party to the proceedings, * * * he shall not take cog- nizance thereof unless all parties to the suit consent thereto in writing; * *."

Thereupon, the plaintiff, relying upon Code, 56-1-1 (g), brought the suit in Ritchie County, in an adjoining circuit The latter section reads as follows: "If a judge of a circuit be interested in a case which, but for such interest would be proper for the jurisdiction of his court, the action or suit may be brought in any county in an adjoining circuit."

Plaintiffs in error urge that the judge of the circuit court of Harrison County was disqualified, not by interest, but by relationship. They urge that at common law disqualification for interest is well recognized, and that it must be a direct pecuniary interest personal to the judge himself before the disqualification exists. They say that this is the interest meant in Code, 51-2-8, which contemplates also, and separately, disqualification for relationship to a litigant, and knowledge rendering the judge a witness in the cause. They insist that Code, 56-1-1 (g), authorizes a suit to be brought in an adjoining circuit only when the judge of the original circuit is disqualified for interest not for relationship. From the history of the enactment, we do not believe, however, that the drawing of those distinctions is consonant with its real purpose. In our opinion, Code, 51-2-8, in its entirety, covers the matters which disqualify a judge for interest and says, in effect, that the common law rule which defines interest disqualifying a judge as being direct pecuniary interest personal to himself, and which did not disqualify him for the interest he would have in the cause by reason of having a relative involved as a litigant before him, is extended in West Virgnia so as to disqualify a judge for interest when relationship with a litgant exists within the prohibited degrees, or there is relationship with a stockholder of a corporate litigant within the degrees named in the statute. We see small reason for making a distinction between the interest a judge would have in a case for himself directly, and that interest that he would inevitably feel if a near relative, in effect, were a party litigant. We believe that this is exactly the distinction, existing at common law, which the statute was aimed to do away with. We do not think that there is any question of definition which can blind to the fact that a very real human interest exists where near relatives are involved. We therefore say that when a judge of the circuit court is disqualified within Code, 51-2-8, he is disqualified for interest within the meaning of Code, 56-1-1 (g). It is therefore our opinion that the circuit court of Ritchie County had jurisdiction to entertain the cause brought therein.

Under the same assignment of error it is urged that the circuit court of Ritchie County wrongfully assumed jurisdiction to interfere with the probate and administration jurisdiction of the county court of Harrison County. We do not think this point is well taken. This proceeding is not a proceeding which has any direct bearing upon tie administration of estates and the function exercised by county courts in connection therewith. It is a proceeding in equity for the appointment of a trustee. This is a time-honored inherent power of equity courts. It is furthermore made so by statute in this state. Code, 44-14-1.

The second assignment of error states under sub-head (a) that it was error for the judge of the circuit court of Ritchie County to grant the preliminary injunation herein without notice. This was done on November 15, 1932. The matter of giving notice upon the granting of an injunction is largely discretionary in the trial chancellor. In view of the development of this cause in the circuit court of Ritchie County, we do not deem it important to state here whether the trial chancellor in this instance abused that discretion or not. The cause proceeded to final decree some months later. That final decree perpetuated the preliminary injunction. It is now before us for our consideration and should we determine...