Nutter v. Brown
| Decision Date | 07 November 1905 |
| Citation | 52 S.E. 88,58 W.Va. 237 |
| Parties | NUTTER v. BROWN et al. |
| Court | West Virginia Supreme Court |
Submitted June 8, 1905.
Syllabus by the Court.
Ordinarily an appeal does not lie from a decree for costs only in a chancery suit, but there are exceptions to the rule, turning on the question of the discretionary power of the trial court respecting costs. A decree for such costs as are discretionary is not appealable, but one for costs not in the discretion of the court is appealable, provided the amount thereof is more than $100.
Extraordinary costs, such as allowances of expenses and compensation of receivers, either as between the receiver and the fund in court and parties, or as between party and party, are not discretionary, and a decree respecting such costs is appealable.
Such costs may, in a proper case, be provisionally allowed to the officer out of the fund, and ultimately decreed to be paid to the party entitled to the fund by his adversary; but in either case a decree of such character is appealable.
Mere irregularities in the appointment of a special receiver acquiesced in by the parties, will neither deprive such receiver of his compensation, nor the successful party of a decree over against his adversary for the amount thereof when it has been allowed out of a fund belonging to the party so prevailing.
When in a suit in equity, the title to personal property of such character as renders sale thereof necessary for the adequate protection of the rights of the parties interested is involved, the court in which such suit is pending may properly appoint a receiver to take charge of it and make sale thereof.
When in such case, one defendant claimed four-fifths of the property in dispute, and two others jointly claimed the remaining interest, and the court adjudged the property to belong to the plaintiff, and gave the ordinary costs against all the defendants, reserving its judgment as to the extraordinary costs, and afterwards decreed that the defendant who had claimed the four-fifths interest pay the same, the decree as to the extraordinary costs will not be disturbed on appeal, unless the court can see that such defendant has been required to pay more than his due proportion of the entire cost.
Appeal from Circuit Court, Harrison County.
Action by Cordelia Nutter against Beeson H. Brown and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Brannon, P., dissenting.
W. SCOTT and Wm. T. George, for appellants.
E. G. Smith, E. A. Brannon, and Millard F. Snyder, for appellee.
This is a third appeal in the case of Nutter v. Brown, the history of which may be obtained by reference to 51 W.Va. 598, 42 S.E. 661, and 46 S.E. 375, where the dispositions made of the first and second appeals are reported. The decree from which the second appeal was taken directed the special receiver to pay over and deliver the proceeds of the property in controversy to the plaintiff, Cordelia Nutter, and the defendants C. T. Arnett and J. M. Garrett in the proportions in which they were entitled, one-half to Cordelia Nutter, and one-fourth to each of the other two parties, and required the defendants Beeson H. Brown, Henry R. Smith, and Gertrude Duncan to pay to the plaintiff, Cordelia Nutter, her costs. But that decree reserved for future adjudication all questions relating to the compensation of the receiver and his costs and expenses, and also the question whether such costs and expenses should be taxed against the defendants as part of the costs in the cause. After the affirmation of said decree by this court, the receiver filed his report in the court below, showing that he had received on account of the oil $14,052.42, had paid out on account of taxes $404.04, had paid a fee of $25 to the attorney of the receiver, and had retained his commission of 5 per cent., amounting to $702.62, making a total of $1127.66, which, deducted from the total receipts, left $12,924.76, which he had distributed to the parties entitled under the decree aforesaid; and the court confirmed his report and discharged him. Later, May 28, 1904, Cordelia Nutter, James M. Garrett, and C. T. Arnett, out of whose funds said attorney's fee and receiver's compensation had been retained, applied to the court for a decree against Beeson H. Brown, one of the defendants, for said sums as part of their costs in the prosecution of their suit, and such decree was entered for the sum of $723.62. From it Brown has obtained the present appeal.
The appeal is resisted on the ground that the decree is for costs only, as to which no appeal lies. The appellate jurisdiction of this court in cases pecuniary in their nature is limited by the Constitution to those in which the matter in controversy, exclusive of costs, is of greater value or amount than $100. Const. art. 8, § 3. This expressly excludes the addition of costs to the value or amount in controversy for the purpose of making it more than $100. It does not prevent costs, when a subject of independent adjudication, from reaching the appellate court. Taney v. Woodmansee, 23 W.Va. 709, in which an appeal was entertained from a decree overruling a motion to quash an execution, although the amount in controversy was composed wholly of costs. It only inhibits addition of costs to the matter in controversy on the merits, in order to bring the amount up to the jurisdictional point, a sum in excess of $100, and has nothing to do with the question whether an appeal from a decree for costs only may be entertained. In this view of the constitutional limitation my associates do not concur. However, the general rule is, and always has been, both in England and in this country, that, independently of any constitutional limitation, a decree for costs only is not ordinarily appealable. Pritchard v. Evans, 31 W.Va. 137, 5 S.E. 461; Long v. Perine, 41 W.Va. 314, 23 S.E. 611; Graham v. Bank, 45 W.Va. 702, 32 S.E. 245; Cowles v. Whitman, 10 Conn. 121, 25 Am.
Dec 60; Smith v. Shaffer, 50 Md. 132; Lake v. Shumate, 20 S.C. 23; Temple v. Lawson, 19 Ark. 148; Howe v. Hutchison, 105 Ill. 501; Shields v. Bogliolo, 7 Mo. 136; Sanborn v. Kittredge, 20 Vt. 632, 50 Am.Dec. 58; Elastic Fabrics Co. v. Smith, 100 U.S. 110, 25 L.Ed. 547; Wood v. Weimar, 104 U.S. 786, 26 L.Ed. 779; Russell v. Farley, 105 U.S. 433, 26 L.Ed. 1060; Paper Bag Cases, 105 U.S. 766, 26 L.Ed. 959; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; Burns v. Rosenstein, 135 U.S. 449, 10 S.Ct. 817, 34 L.Ed. 193; Du Bois v. Kirk, 158 U.S. 58, 15 S.Ct. 729, 39 L.Ed. 895; Bank v. Hunter, 152 U.S. 512, 14 S.Ct. 675, 38 L.Ed. 534; Bank v. Cannon, 164 U.S. 319, 17 S.Ct. 89, 41 L.Ed. 451; Kittredge v. Race, 92 U.S. 116, 23 L.Ed. 488; Canter v. Ins. Co., 3 Pet. 307, 7 L.Ed. 688; 3 Eng. Ruling Cas. 243; 5 Enc. Pl. & Pr. 319. This is true, however, of those cases only in which the awarding of costs is in the discretion of the court below. In refusing to take jurisdiction, the courts all say the reason for declining is that the case is one in which the trial court has discretion to award or refuse costs. In 3 Eng. Ruling Cases, 243, the rule on the subject is stated as follows: "The general rule of the court of chancery, which is now confirmed and made absolute by the Judicature Act 1873, § 49, so far as relates to costs which are in the discretion of the court, that no appeal can be entertained upon a mere question of costs." This is the old rule of equity practice, simply declared or confirmed by statute. The reason given by the authorities in this country, where the judiciary act governing the present English practice has no application, is the discretionary power of the court below. "Whether costs shall be decreed by a court of equity is a question always addressing itself to the discretion of the chancellor, and the authority of an appellate court to correct his decrees is not without doubt." 5 Enc. Pl. & Pr. 218 (Cowles v. Whitman, Sanborn v. Kittredge, Howe v. Hutchison, Lake v. Shumate, Smith v. Shaffer, and Temple v. Lawson, all cited); Joslyn v. Parlin, 54 Vt. 670; Railroad Co. v. Bixby, 57 Vt. 548; Hastings v. Perry, 20 Vt. 272. The opinion in Temple v. Lawson, 19 Ark. 148, seems to have been very carefully prepared, and makes the clearest and most exhaustive presentation of the authorities to be found among the American decisions, and the conclusion announced is that costs are not always in the discretion of the chancellor, but that such costs as are in his discretion cannot be the subject of appeal. His conclusion is expressed in the following language: "The discretion which we have said resides in the court to award or give costs must be understood to relate only to those costs in a suit which are denominated 'general,' or properly 'costs in the cause,' and not such as may be said to be extraordinary, such as directing the costs of the suit to be paid out of a particular fund, or where the court, under special circumstances and a particular state of facts, developed by a proper course of pleading and demanded at the proper time, will direct counsel fees to be paid by a party either generally or out of a particular fund." The principle thus laid down is fully sustained by the English decisions from which the rule in this country was originally deduced, but in the specification of instances it stops short of many of the precedents. The tendency by the courts of this country is to limit, rather than extend, the exception to the general rule; in other words, it is to allow but one exception, namely, a decree for payment of costs out of the fund, on the theory that it is the only exception recognized in the old English practice. Thus, Mr. Justice Bradley, in Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157, said: ...
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