Petrie v. Buffington, Sheriff.

Citation79 W.Va. 113
CourtSupreme Court of West Virginia
Decision Date31 October 1916
PartiesPetrie v. Buffington, Sheriff.
1. Bankruptcy Administration of Estate Actions Jurisdiction of Equity.

Where a husband is insolvent and sells a part of his property for cash, and gives the purchase money to his wife without any consideration, she having no other property, and he then immediately applies for a discharge from his debts under the bankruptcy laws of the United States, the trustee in bankruptcy of such person may maintain a suit in equity in a state court, prohibiting the wife from disposing of the money, and for the appointment of a receiver to take charge of the money and preserve it for the benefit of the bankrupt's estate, and to require the wife to deliver the money to the trustee. (p. 117).

2. Same Administration of Estate Action by Trustee Appointment of Receiver.

Where it is alleged in the bill such as indicated in the foregoing syllabus, that a husband being insolvent gives money, the proceeds of his property sold while he was insolvent, to his wife, who has no other property, and then immediately (that is within a few days) thereafter applies for a discharge in bankruptcy, and it is alleged in the bill that the wife has the money in her possession and refuses to deliver it to the trustee, that the transfer to her was without consideration and void under the bankruptcy act, and that he has the right to avoid such transfer to receive the money and to hold and disburse it for the benefit of the bankrupt's estate, and the wife appears to the bill and admits that the allegations of the bill are true, a special receiver may be appointed to take charge of such money and keep the same until the further order of the court. (p. 117).

3. Constitutional Law "Due Process of Law" Order of Court.

In such case, above stated, the suit having been regularly proceeded in, the bill filed, and the defendant having appeared in the cause, with opportunity to defend, and having admitted the allegations of the bill, the order directing the delivery of the property to the receiver was not in contravention of the Fourteenth Amendment to the Constitution of the United States in that it deprives the defendant of her property without "due process of law." (p. 118).

4. Contempt Acts Constituting Disobedience to Order.

Where a lawful order has been made by a court having jurisdiction over the person and subject matter appointing a receiver for personal property, and requiring a person having possession of the property, who is a party to the suit, to deliver such property to a special receiver, and he refuses to do so, he may be punished for contempt for disobedience to such order. (p. 119).

5. Same Proceedings to Punish Power in Vacation.

A judge of a circuit court has authority, in vacation of the court, to punish for a contempt for a disobedience to a lawful order of such court. (p. 120).

6. Execution Decree for Delivery of Money Construction and Operation.

A decree of a court requiring a person to deliver to a receiver of the court a certain specified parcel of money, is not a decree for the payment of money such as execution might issue thereon and be levied on the defendant's other property. It is in the nature of a proceeding in rem, affecting this particular property only, (p. 119).

7. Contempt Punishment Commitment.

It is competent for a court, or judge thereof in vacation, having jurisdiction to punish for contempt, to inflict punishment on one who refuses to obey an order or decree of the court, by committing him to jail until he obeys such order, if the order is such that the defendant may obey. (p. 120).

Original application by Bertie Petrie for writ of habeas corpus to P. C. Buffington, sheriff, etc.

Writ dismissed, and prisoner remanded.

Daugherty & Riggs, for petitioner. Geo. S. Wallace, for respondent.

Mason, Judge:

E. 0. 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 $500.00 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, "West Vir-ginia, alleging that prior to the date of said adjudication of E. 0. Petrie as a bankrupt, he (Petrie) sold certain valuable estate belonging to him to his brother, receiving therefor the sum of $500.00, and that within a few days thereafter he transferred the said sum of $500.00 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 $500.00 for the benefit of said bankrupt's estate; that he demanded the said sum of $500.00 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 $500.00, 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 five hundred dollars 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 $500.00; that a receiver be appointed to take charge of and conserve the said sum of $500.00; 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 $500.00 given to her by her hsuband.

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 $500.00 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 and Trust Company receiver of the said $500.00 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 $500.00 decreed in plaintiff's bill. The said Bertie Petrie refused to obey this order.

On the 27th day of May, 1916, the plaintiff, Philip P. Gib-son, 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 May 6, 1916, directing her to turn over to the Union Savings Bank and Trust Company the said sum of $500.00, 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 3rd 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. vs 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 sixth 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, West Virginia, entered herein on the sixth day of May, 1916, in the chancery cause of Philip P. Gibson trustee, etc. vs Bertie Petrie."

The said sheriff, on the 23rd 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 that 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...

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13 cases
  • In re Frieda Q.
    • United States
    • Supreme Court of West Virginia
    • 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......
  • State ex rel. Robinson v. Michael, 15084
    • United States
    • Supreme Court of West Virginia
    • April 3, 1981
    ... ... Petrie v. Buffington, 79 W.Va. 113, 90 S.E. 557 (1916). In that case the alleged contemner refused to ... ...
  • Nepstad v. East Chicago Oil Ass'n, Inc.
    • United States
    • United States State Supreme Court of Montana
    • February 1, 1934
    ... ... is issued in every essential particular." 23 C.J. 402, ... and cases cited; Petrie v. Buffington, 79 W.Va. 113, ... 90 S.E. 557; see also section 9420, supra ... ...
  • Petrie v. Buffington
    • United States
    • Supreme Court of West Virginia
    • October 31, 1916
  • Request a trial to view additional results

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