Park v. PETROLEUM Co.

• Decision Date: 14 November 1884
• Citation: 25 W.Va. 108
• Court: West Virginia Supreme Court
• Parties: Park v. PETROLEUM Co.

25 W.Va. 108

Park

v.PETROLEUM Co.

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1884.

Decided Nov. 14, 1884.

1. A plea and answer copied into the record by the clerk, no order of the court having been entered in the cause permitting them, or either of them to be filed, nor any order or decree recognizing them as filed, are not a part of the record and can not be considered by this Court. (p. 110.)

2. A corporation must defend a suit brought against it in its corporate name; and a purchaser of stock will not be permitted to do so, unless the corporation has refused to defend. !p. ill.)

3. If in such case the officers or agents of the corporation refuse to defend the suit, the court may allow such defense in equity to be made by the stockholders. (p. 111.)

4. The corporation, not the stockholders, is the legal owner of the corporate property. (p. 112)

5. Where a corparation was sued and its property attached in equity for a claim, and the corporation appeared and demurred to the bill, and a party filed his petition and asked to be made a party defendant and to be allowed to file his answer, which he was permitted to do, and in said answer he averred that he had purchased of one of the stockholders three fourths of all the stock of the corporation, and then proceeded to resist the plaintiff's money-demand against the corporation, on motion of the plain- tilt his answer was stricken from the record; and it did not appear that the corporation had refused to defend the suit. Held:

The court did not err in striking out the answer. (p. 112.)

6. Where a demurrer was overruled, and the court in its discretion gave the defendant thirty days within which to answer, it was error for the court on the same day without an answer to decree against the defendant (112.)

7. A debtor cannot have a decree reversed confirming a sale of real estate for an error in the decree ordering the sale, when he has taken no steps in the court below before such confirmation to resist the same. But such decree, so far as it confirms the sale, may be affirmed, and so far as it orders a distribution of the proceeds of sale, may be reversed. (p. 112)

The facts of the case are fully stated in the opinion of the Court.

Leonard &Caldwell for appellant.

W. S. Sands for appellee.

Johnson, President:

The plaintiff filed his affidavit under the statute on the 2d day ot June, 1881, setting up a claim against the defendant and showing, that said defendant was a non-resident of the State; and on the filing of such affidavit an attachment issued, which was levied on certain lands in Wirt county. The attachment was in equity and issued by the clerk of the circuit court of said county, in which this suit was brought. At June rules, 1881, the plaintiff filed his bill in equity against the said defendant with the proper allegations and charges therein. One E. R. Ware asked to file his petition to be made a defendant, which was by the court granted on the 26th ot July, 1881. He thereupon filed his answer, in which he avers, "that he purchased from the legal heir and representative of W. R, Finch all the title and interest of the said Finch in the property and stock of said company and took a deed therefor, which is of record in the clerk's office of the county, a copy of which is filed with the papers in the chancery suit ofrespondent against the stockholders of said company in this honerable court; that under said deed he took possession of said property and has since held the same; that said W. R. Finch owned or held three fourths of said company's stock; and that by virtue of the conveyance to him he is entitled to all the rights of the said Finfch as owner of said stock and property." He denies the indebtedness of the company to the plaintiff, &c.

On the 27th of October, 1881, the plaintiff moved to strike from the papers of the cause the petition and answer of said E. R. Ware, and, the court being of the opinion that said petition and answer were improperly filed, the same were stricken from the record.

On the 30th of March, 1882, the defendant, The Ulster and Kanawha Petroleum Company, filed its demurrer, which was overruled, and the order overruling the demurrer "allowed the said defendant thirty days to file its answer to said bill. Then follows an order, which, the clerk certifies, was entered on the same day, to-wit, the 30th day of March, 1882," deciding the case against the defendant, and decreeing the said defendant to pay to the plaintiff the amount of his claim, which had been audited by a commissioner, and ordering a sale of the attached property. The commissioner reported his sale to the court, from which it appears, that he sold the attached property under the order of the court to B. S. Whims, the purchaser, for $612. There was no exception to this report and on the 27th day of June, 1882, the court confirmed the report and sale and ordered the distribution of the proceeds of the sale. From this decree The Uster and Kanawha Petroleum Company and E. R. Ware appealed. There appears copied into the record a plea of the defendant company, which was intended to be a plea of res judicata: also an answer ot said company raising the same defense.

A certiorari was awarded, which brings up a record of a suit strikingly like this, in which the bill seems to have been dismissed on the hearing on the merits. It being insisted in the argument that no plea nor answer was filed by the...