Petrie v. Buffington

Decision Date31 October 1916
Citation90 S.E. 557
CourtWest Virginia Supreme Court
PartiesPETRIE. v. BUFFINGTON, Sheriff.

(Syllabus by the Court.)

Original application by Bertie Petrie for writ of habeas corpus to P. C. Bufflngton, sheriff, etc. Writ dismissed, and prisoner remanded.

Daugherty & Riggs, of Huntington, for petitioner.

Geo. S. Wallace, of Huntington, for respondent.

MASON, J. E. O. Petrie, husband of the petitioner Bertie Petrie, was adjudicated a bankrupt in February, 1916. Philip P. Gibson was elected trustee of the said bankrupt estate. Shortly before Petrie was adjudicated a bankrupt, and while he was insolvent, he sold some of his property, receiving $500 from the purchaser. Within a few days after receiving it, he transferred this money to his wife, it is alleged without valuable consideration.

On the 27th day of April, 1916, the said Gibson as trustee filed his bill in the circuit court of Cabell county, W. Va., alleging that prior to the date of said adjudication of E. O. Petrie as a bankrupt, he (Petrie) sold certain valuable estate belonging to him to his brother, receiving therefor the sum of $500, and that within a few days thereafter he transferred the said sum of $500 to his wife, without consideration; and that he as such trustee has the right to avoid such transfer and to receive from her the said sum of $500 for the benefit of said bankrupt's estate; that he demanded the said sum of $500 from her; that she admitted she had the money, but refused to deliver it to him as such trustee. It is also alleged in said bill that said Bertie Petrie has no property of any kind except the said $500, and that before the same could be recovered from her by judgment of law, she could dispose of the same, and such judgment would be unavailing. The bill further alleges that:

"He is entitled to have the identical sum of $500 in the possession of the said Bertie Petrie turned over to him under the provisions of said act of bankruptcy."

The bill asks that the said Bertie Petrie be enjoined from transferring or disposing of the said $500; that a receiver be appointed to take charge of and conserve the said sum of $500; and that a decree may be entered adjudicating that the complainant as trustee, etc., may recover of and from said Bertie Petrie the said sum of $500 given to her by her husband.

On the 6th day of May, 1916, the parties appeared in court, and counsel for the said Gibson moved the court to appoint a receiver for said $500 in the bill mentioned and described. It was thereupon agreed between the parties "that for the purpose of this motion that the allegations of the plaintiff's bill may be regarded as true." Thereupon the court appointed the Union Savings Bank & Trust Company receiver of the said $500, and authorized it to take possession thereof and to keep the same in its bank until the further order of the court. It was further ordered and decreed that the said Bertie Petrie be and she was thereby required to turn over to the said receiver the said sum of $500 decreed in plaintiff's bill. The said Bertie Petrie refused to obey this order.

On the 27th day of June, 1916, the plaintiff Philip P. Gibson, trustee, appeared in court and filed the affidavit of A. H. Dickinson, stating that after said Bertie Petrie was served with a copy of said order of June 6, 1916, directing her to turn over to the Union Savings Bank & Trust Company the said sum of $500, she declined and refused to obey said order; and thereupon the said Gibson moved the court that a rule be issued against her to appear and show cause if any she can why she should not be fined for contempt of court for failing to comply with said order. A rule was issued against her as prayed for, returnable June 3, 1916. On the 3d day of June, 1916, the Honorable John T. Graham, judge of said court, entered an order in vacation of court, reciting that:

The said Bertie Petrie "not showing or asking to be allowed to show any further or other cause why she should not be attached or otherwise proceeded against for her failure to comply with the order of this court made on the 29th day of May, 1916, and the order of this court made on the 6th day of May, 1916, and mentioned in said rule, it is ordered that the sheriff of the county attach the body of said Bertie Petrie and keep her in safe custody in the jail of Cabell county aforesaid until the further order of this court."

The said Bertie Petrie was arrested by virtue of said order, and taken into the custody of the said sheriff, and taken before the said judge of the said court, in vacation, and she moved the court

"to discharge the attachment heretofore awarded against her, upon the ground that the court was without jurisdiction to award said attachment, and assigns as a reason therefor that the bill heretofore filed in the chancery cause of Philip P. Gibson, Trustee, etc., v. Bertie Petrie, was without equity, which motion was argued by counsel and was overruled, and the said defendant Bertie Petrie not showing or asking to be allowed to show any further or other cause why she should not be attached or otherwise proceeded against for her failure to comply with the order of this court made on the 6th day of May, 1916, and with the order of the circuit court of Cabell county."

And the judge again ordered:

"That the sheriff of said county do attach the body of Bertie Petrie and keep her in safe custody in the jail of the county aforesaid, until she complies with said order of the circuit court of Cabell county, W. Va., entered herein on the 6th day of May, 1916, in the chancery cause of Philip P. Gibson, Trustee, etc., v. Bertie Petrie."

The said sheriff, on the 23d day of September, 1916, again took said Bertie Petrie into his custody under said order of June 24th, whereupon the said Bertie Petrie filed her petition in this court, stating the foregoing facts and praying for a writ of habeas corpus ad subjiciendum be granted her, etc., and that the said sheriff be required to show cause, if any he can, why she is detained by him and not delivered up and discharged, etc. The writ was issued, and the said sheriff for return thereto, by consent of the parties, made copies of the injunction proceedings and the orders of attachment parts of his return, and moved to quash the writ.

The petitioner demurred to the return. The only question to be determined by this court is" whether or not the said record presents a case which authorized the judge to make the order attaching her. The petitioner claims that her detention is unlawful for the following reasons:

"First. Because the said circuit court had no jurisdiction, power, or authority to make and enter the said order of May 6, 1916, requiring your petitioner to turn over to the special receiver the said sum of $500, and that said order was therefore void.

"Second. That your petitioner is being imprisoned for a debt, and the circuit court has no jurisdiction or power conferred by law to order such imprisonment in such a proceeding.

"Third. Because the judge of the circuit court is without jurisdiction to enter the said order of June 24, 1916, in the vacation of the court, and that therefore the same is void."

It is provided by section 28, c. 133, of the Code (sec. 4974) that:

"A court of equity may in any proper case pending therein, in which the property of a corporation, firm or person is involved, and there is danger of the loss or misappropriation of the same or a material part thereof, appoint a special receiver of such property or of the rents, issues and profits thereof."

The court is by this statute authorized to appoint a special receiver in any "proper case." If the facts admitted in this record do not make a "proper case" for the appointment of a special receiver for the protection and preservation of the property,...

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15 cases
  • Kansas City v. Markham, 33030.
    • United States
    • Missouri Supreme Court
    • November 12, 1936
    ...Ind. 19; Gwathmey v. Burgiss, 104 S.C. 280; Railroad v. Railroad Comm., 161 Fed. 925; Young v. City, 174 S.W. 986; Petrie v. Buffington, 90 S.E. 557. Thomas F. McDonald, Frank B. Coleman, R. Forder Buckley, Clifford Greve, Fred E. Moore, Jr., Norman C. Parker, Claude O. Pearcy, Robert A. Ro......
  • In re Frieda Q.
    • United States
    • West Virginia Supreme Court
    • March 21, 2013
    ...contempt in a wide variety of situations, including where the contemner refused to turn property over to a receiver, Petrie v. Buffington, 79 W.Va. 113, 90 S.E. 557 (1916); where the contemner refused to obey an injunction, State v. Fredlock, 52 W.Va. 232, 43 S.E. 153 (1903); where the cont......
  • Kansas City v. Markham
    • United States
    • Missouri Supreme Court
    • November 12, 1936
    ... ... Davidson, 177 Ind. 19; Gwathmey v ... Burgiss, 104 S.C. 280; Railroad v. Railroad ... Comm., 161 F. 925; Young v. City, 174 S.W. 986; ... Petrie v. Buffington, 90 S.E. 557 ...          Thomas ... F. McDonald, Frank B. Coleman, R. Forder Buckley, Clifford ... Greve, Fred E. Moore, ... ...
  • State ex rel. Robinson v. Michael, 15084
    • United States
    • West Virginia Supreme Court
    • April 3, 1981
    ...to be criminal. 7 The erroneous holding and subsequent misinterpretation of Ruhl and Irwin began to erode in Petrie v. Buffington, 79 W.Va. 113, 90 S.E. 557 (1916). In that case the alleged contemner refused to obey an order to turn over property to a court appointed receiver and was commit......
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