Stannard Supply Co. v. Delmar Coal Co.
| Decision Date | 02 June 1931 |
| Docket Number | 7005. |
| Citation | 158 S.E. 907,110 W.Va. 560 |
| Parties | STANNARD SUPPLY CO. et al. v. DELMAR COAL CO. et al. |
| Court | West Virginia Supreme Court |
Submitted May 21, 1931.
Syllabus by the Court.
After term ends, decree cannot be amended except for mere clerical misprisions (Code 1923, c. 134, § 5).
A decree may be amended, modified, or set aside before the end of the term at which it is entered, for during the term the proceedings are said to be in the remembrance and "breast of the court"; but after the term ends a final decree cannot be amended except for mere clerical misprisions, such as are set out in chapter 134, Code 1923.
Nunc pro tunc orders can be made only on showing some entry upon records or quasi records of court; parol evidence of rendition of judgement cannot be received as basis for nunc pro tunc order, at least until entry or memorandum is produced.
In this state the rule is that "a nunc pro tunc order can only be made upon showing some entry or memorandum upon the records or quasi records of the court, and that parol evidence of the rendition of the judgment and its terms cannot be received, at least until such entry or memorandum is produced." Cameron v. Cameron, 105 W.Va 621, 143 S.E. 349, 351.
Lienor who has joined in appointment of receiver and has benefited by receivership cannot object to paying his just proportion of costs.
Where a lienor has joined in the appointment of a receiver and reaped benefits from the receivership, he cannot object to payment of his just proportion of the costs out of the funds in the hands of the receiver.
Appeal of one party will not bring up for adjudication other's rights, where rights are separate and not equally affected by decree.
Where parties to a suit stand upon distinct and unconnected grounds, their rights being separate and not equally affected by the same decree, the appeal of one will not bring up for adjudication the rights of the other.
Additional Syllabus by Editorial Staff.
"Consent decree" is not judgment of court, but is contract between parties entered into of record with court's consent, and is not necessarily based upon pleadings or records in case.
Appeal from Circuit Court, Taylor County.
Suit by the Stannard Supply Company and others against the Delmar Coal Company and others, in which receivers were appointed to operate the coal company's property. From a decree relative to allowances to receivers and attorneys, and from a decree as to allocation of costs, defendant Pittsvein Coal Company and another appeal, and the Ruth Supply Company files cross-assignments of error.
Cross-assignments of error dismissed, and first decree appealed from reversed in part and cause remanded.
Wm. T. George, of Philippi, J. Howard Hundley, of Charleston, and Ira E. Robinson, of Grafton, for appellants.
W Bruce Talbott and E. Wayne Talbott, both of Philippi, William G. Johnson and Charles B. Johnson, both of Clarksburg, and William E. Glasscock, Jr., and Walter Vickers, both of Morgantown, for appellees.
These suits, begun in 1929, were afterwards consolidated. The suit of George Putzek and others against Delmar Coal Company and others was for the purpose of enforcing laborer's liens and that of Stannard Supply Company was to enforce its claim. Receivers were appointed who operated the properties. A master commissioner made a comprehensive report of the properties, the liens thereon, their dignity and priorities, and other matters; and such proceedings were had that a final decree was entered on August 7, 1930, and the properties ordered to be sold by special commissioners. That decree allowed to the receivers for their services an aggregate sum of $10,000, being $6,000 to Horner and $4,000 to Phillips; it allowed to C. B. Johnson $7,500, to E. Wayne Talbott $6,500, and to Frank R. Amos $4,000, all as attorney fees, and which were taxed as a part of the costs. The properties were sold and the sales confirmed. By decree of February 17, 1931, 66 2/3 per cent. of the costs of suits was directed to be paid out of the rental fund derived from the Pittsvein Mining Property, 16 2/3 per cent. to be paid out of the rentals of the Ruth mining property, and a like per cent. out of the rental fund derived from the Barry mining property. On that day Waddell Fuel Company, which had purchased the purchase-money lien of Pittsvein Coal Company on April 4, 1930, and decreed to Pittsvein, filed its petition asking to be (and was) substituted as defendant in lieu of Pittsvein. It appears that Pittsvein had purchased at the judicial sale for $50,000 the property on which it had a vendor's lien of approximately $300,000, and on some of the personalty sold, and that it had purchased as the agent of Waddell Fuel Company to whom it afterwards conveyed the property so purchased. The Waddell Fuel Company and Pittsvein appeal from the decree of August 7, 1930, charging that the allowances to the receivers and attorneys were improperly awarded, and are excessive and unwarranted; and appeal from the decree of February 17, 1931, charging that the allocation of costs (66 2/3 per cent.) to the Pittsvein property (funds derived from its operation) is error, and that no part of that fund should have been paid out as costs, because it lessened the value of the vendor's lien. They say that their lien for purchase money was superior to and took preference over costs of the suit.
It appears that there were three mining properties owned by Delmar Coal Company, two in Taylor county and the other in Monongalia county, known as the ""Ruth" mine, which consisted of 300 acres of coal and a good plant. The Pittsvein mining property in Taylor county, known as the "Pittsvein," consisted of about 900 acres of coal operated by two mines. This is the property out of which appellants' interests arise. The other mine operation in Taylor county, known as "Barry" property, consisted of 70 acres of coal and a good mining plant. The receivers realized about $70,000 from operation of the Pittsvein, about $47,000 from the other two operations, and about $10,000 from other sources; and, it is stated, they have in their hands for distribution about $31,000.
The decree of August 7, 1930, challenged in respect to the allowances to the receivers and attorneys, was entered at a special term, and had been prepared in advance and carbon copies sent to the various attorneys, including those representing Pittsvein. At that time, appellant Waddell was not a party and had no interest in the case in so far as the pleadings and proceedings then showed. However, the draft of the decree did not contain any mention of receivers' allowances or attorneys' fees. That part of the decree was prepared and attached to the original draft at the special term, the amounts being left blank for the court to fill in. No one had prior notice that this matter of allowances and fees would be included in the decree or submitted to the court. Neither the receivers nor attorneys for them had made any formal application for allowances, nor had the report of the master touched thereon. No evidence was taken as to the value of the services, or what would be a just compensation therefor. The court was evidently led to understand that the parties had agreed to waive the usual and prudent proceedings justifying a decree for such allowances, and had submitted the entire matter without evidence, or formal intemization of the services performed. In argument it was admitted that the proceeding was irregular and could not be justified, except upon the theory of waiver and consent; and there is a sharp controversy as to whether counsel for Pittsvein consented to and confirmed the amount of these allowances.
Pending the appeal here, in order to clarify this controverted question, counsel for appellees, on May 13, 1931, served notice on appellants that it would move the trial court on the following day to amend the decree of August 7, 1930, so as to show that the allowances and their amounts had been consented to by counsel for Pittsvein. Appellant Waddell Fuel Company appeared specially and objected to any modification. Without any evidence being taken, the court amended the decree of August 7, 1930, the amendment reciting that counsel for Pittsvein had appeared in open court, and with other attorneys had placed an ""OK" on the decree and signed his name on the back thereof, and consented and agreed that the allowances made should be taxed as a part of the costs of the suits and paid out of the rental fund coming into the hands of the special receivers. By certiorari this decree of May 14, 1931, has been brought before us, over the objection of appellants. In opposition to the truth of the recitals in that decree, they have tendered affidavits affirming that the decree of August 7th was not a consent decree. To the filing of these affidavits, appellees object asserting that affidavits cannot be used to contradict a record or decree, citing Fox v. City of Hinton, 70 W.Va. 654, 74 S.E. 908....
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