State Ex Rel. 0. Otto Donley v. Baker
| Decision Date | 03 May 1932 |
| Docket Number | (No. 7344) |
| Citation | 112 W.Va. 263 |
| Court | West Virginia Supreme Court |
| Parties | State ex rel. 0. Otto Donley v. Hon. Chas. G. Baker,Judge, et al. |
A mandatory injunction is one of the most extraordinary remedies recognized by a court of equity. The granting of such a writ is a matter resting largely in the discretion of the chancellor. It is resorted to usually for the purpose of effectuating full and complete justice.
Mandatory injunctions are seldom allowed before final hearing, but may be awarded at the inception of the suit in cases of necessity and extreme hardship. Powhatan Coal Co. v. Ritz, Judge, 60 W. Va. 395, 56 S. E. 257.
Where the injunction requires property claimed by the defendant to be turned over to a receiver of the court, the act of the chancellor in so doing is a mere provisional remedy, the legitimate object of which is the preservation of the property in controversy until the final decision of the case on a full and final hearing on the merits or dismissal of the bill for want of jurisdiction or other sufficient cause.
The granting or refusal of an injunction, whether mandatory or preventive, calls for the exercise of sound judicial discretion in view of all the circumstances of the particular case; regard being had to the nature of the controversy, the object for which the injunction is being sought, and the comparative hardship or convenience to the respective parties involved in the award or denial of the writ.
Original proceeding by the State, on the relation of 0. Otto Donley, for a writ of prohibition prayed to be directed to Hon. Charles G. Baker, Judge of the Circuit Court of Monongalia County, and others.
Writ denied
Kermit B. Mason and Minter L. Wilson, for petitioner. Charles A. Goodwin, for respondents.
0. Otto Donley seeks a writ of prohibition restraining Honorable Charles G. Baker, judge of the circuit court of Monongalia County, Edward G. Donley, administrator of the estate of James Wesley Donley, and Robert T. Donley, special receiver, from further enforcing or attempting to enforce a certain decree, pronounced in the cause of Edward G. Donley, Admr., etc., against petitioner, directing the latter to surrender and deliver forthwith to the special receiver certain government bonds, and a subsequent order committing petitioner to the sheriff of Monongalia County for failure so to do.
James Wesley Donley, a resident of Greene County, Pennsylvania, died January 22, 1930, leaving a will appointing the petitioner herein as executor thereof. Petitioner qualified and listed certain property which was appraised at $16,000.00, and thereupon gave the statutory bond in double that amount, Sometime the following year certain of the heirs appeared before the Orphans' Court, in Greene County, and obtained a citation requiring the executor to appear and show cause why he should not make and file a true and perfect inventory of all the goods, chattels and credits of his decedent, including therein certain government bonds in an amount of $80,000.00. On August 25, 1931, it appears that the parties appeared by counsel, and that the court at that time entered an order directing the filing of such an amended inventory within five days and that said bonds be delivered forthwith into the hands of the sheriff or an additional bond for $160,000.00 be executed. Upon failure to comply with said order he was dismissed as executor and another appointed in his place. Due to the fact that both the petitioner herein and the bonds were in Monongalia County, West Virginia, Edward G. Donley was appointed as administrator, with the will annexed in Monongalia County, and filed a bill in chanery setting up that some $80,000.00 in government bonds belonging to his decedent's estate had not been returned in the inventory, and that same had been in the possession of O. Otto Donley, in Monongalia County, West Virginia, and that he fraudulently withheld them from said estate, and has been converting same to his own use. The bill prays, among other things, for the; appointment of a receiver and for a temporary injunction preventing petitioner from further disposing of the aforesaid bonds pending the determination of the suit. A receiver was appointed upon notice, in conformity with the prayer therefor, and petitioner directed to turn the $80,000.00 worth of bonds over to the receiver. Upon failure to comply, the petitioner was committed to the custody of the sheriff. Hence the plesent petition for a writ of prohibition.
The petitioner assails the action of the court by claiming it to be without jurisdiction to enter the injunction complained of, and that the order entered at the instance of the receiver requiring him to turn over the bonds in his possession, to await the action of the court in the suit, is void. He, therefore, asks his release from the judgment of contempt for failing upon demand of the receiver to turn over the bonds so held and claimed by him.
A mandatory injunction is one of the most extraordinary remedies recognized by a court of equity. The granting of such writ is a matter resting largely in the discretion of the chancellor. It is resorted to usually for the purpose of effectuating full and complete justice. This principle in our laws is sustained by all the leading text writers, as well as the opinions of the courts of the land. Because of the nature of the writ, it has been seldom resorted to in this state. We are, however, fortunate in having two cases which bear directly on the question. Powhatan Coal Co. v. Ritz, Judge, 60 W. Va. 395, 56 S. B. 257; Crossland. v. Crossland, 53 W. Va. 108, 44 S. E. 424. In the first case cited is laid down the broad principle that while mandatory injunctions are seldom allowed before final hearing, in cases of necessity and extreme hardship they may be awarded at the inception of the suit and without notice. Thus we are committed to the doctrine that the...
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