State v. Fredlock

• Citation: 43 S.E. 153,52 W. Va. 232
• Parties: STATE. v. FREDLOCK et al.
• Decision Date: 14 January 1903
• Court: Supreme Court of West Virginia

43 S.E. 153

52 W. Va. 232

STATE.

v.FREDLOCK et al.

Supreme Court of Appeals of West Virginia.

Jan. 14, 1903.

COURTS—JURISDICTION—INJUNCTION.

1. When the jurisdiction of a court is asserted over a cause of action, it embraces everything in the case, and every question arising which can be determined in it; and until thus exhausted, or in some way relinquished, the jurisdiction is exclusive, and cannot be encroached upon by any other tribunal.

2. A court having jurisdiction in personam may require the defendant to do or refrain from doing, beyond its territorial jurisdiction, anything which it has power to require him to do or omit within the limits of its territory.

3. When the object of a suit requires the control and dominion of the property involved in the litigation, the court which first acquires possession, or that dominion which is equivalent to possession, becomes vested with the exclusive right to dispose of it for the purpose of its jurisdiction.

4. A court having jurisdiction in personam may restrain a party from prosecuting a subsequent suit in another county, the effect of which will be to withdraw from the court first acquiring jurisdiction a part of the subject-matter of the suit, and disobedience of the injunction order is an act of contempt which may be summarily punished.

5. Sections 4, 6, and 9 of chapter 133 of the Code of 1899 are not applicable to an injunction awarded by a court in aid of its own jurisdiction, based upon grounds wholly independent of the injunction.

6. An injunction issuing from one court to stay proceedings in another operates upon the parties only, and does not affect the jurisdiction of such other court.

(Syllabus by the Court.)

Error to circuit court, Ohio county; Mel-vln & Hervey, Judges.

Action by.the state against J. C. Fred-lock and another. Judgment for plaintiff, and defendants bring error. Affirmed.

F. M. Reynolds and Taylor Morrison, for plaintiffs in error.

Hubbard & Hubbard, for the State.

POFFENBARGER, J. On the 5th day of December, 1900, the circuit court of Ohio county entered an order requiring J. C. Fred-lock to appear in that court on the 12th day of December, 1900, to show cause, if any he could, why he should not be attached for his contempt to said court, offered by his violation of an order of injunction made and entered by that court In the chancery causeof the West Virginia Loan Company and others against Mary L. McMechen and others, restraining the said Fredlock and the Piedmont Feed & Ice Company from further proceeding in a suit in equity instituted by them in the circuit court of Mineral comity on the 19th day of December, 1899. On the 6th day of December, 1900, another order was entered, filing certain affidavits, and directing the attention of the court to a certain exhibit filed in said chancery suit, and again ordering said Fredlock to appear on the 12th day of December, 1900. On said 12th day of December another order was entered, reciting that the rule awarded on December 5th had not been served; and another rule was awarded, requiring Fredlock to appear on December 21st to show cause, etc. This last order was served, and Fredlock appeared on the 2d day of March, 1902, and filed his answer in writing, and moved that the rule be dismissed. The court overruled the motion, found Fredlock guilty, and entered a judgment against him, imposing a fine of $50, and awarding an attachment to hold him until the fine and costs should be paid, and further ordering that he cease from all further proceedings in said chancery suit, and cause the proceedings therein to be stayed, and that he be attached until he shall have complied with the order. To this he has obtained a writ of error and supersedeas.

To the end that the ground upon which it is claimed the judgment is erroneous may be clearly understood, it is necessary to set out the facts and proceedings leading up to it. The West Virginia Loan, Company was a building association organized in 1896. For two years or more it carried on an extensive business, having numerous stockholders and borrowers in various parts of the state and outside of it The plaintiff in error was a stockholder and borrower to the amount of several thousand dollars. On the 5th day of October, 1898, a meeting of the stockholders was held, and a resolution adopted, providing for the voluntary dissolution of the corporation; it having been ascertained that the business could not be profitably prosecuted any further. At March rules, 1899, of the circuit court of Ohio county, the West Virginia Loan Company, James B. McKee, president of said company, Julian G. Hearne, Alfred Paull, George Hook, and J. T. Carter, members of the board of directors, filed their bill in equity to wind up the business and affairs of said corporation; making all its stockholders, and others interested, parties thereto. Process issued thereon March 6, 1899, but was not executed as to all the parties. Other process was issued from time to time to bring them all In, and service was finally made on Fredlock on the 9th day of September, 1899; the summons served upon him having been issued on the 18th day of August, 1899. It seems that on the 30th day of March, 1899, there was a meeting of some of the stockholders for the purpose of attempting to continue the business of the corporation, at which some of those who were directors were removed, and J. C. Fredlock, E. B. Carney, Ralph Broadwater, George W. Dusch, and J. T. Carter were elected to fill the vacancies, who, together with J. G. Hearne and F. D. McCoy, who were not removed, made the full number of directors. On the 4th day of April, 1899, five of these held a meeting, at which they removed from the office of president James B. McKee, and elected E. B. Carney, and Ralph Broadwater was elected vice president George W. Dusch was elected secretary pro tem., and F. D. McCoy was elected treasurer. Then a resolution was adopted providing for the service of notice upon McKee, Hook, and Paull that they had been removed from their offices, and upon W. C. Wilkinson, the secretary, to the effect that he should proceed to discharge his duties as such secretary. Another resolution was adopted providing for notice to the attorney of the corporation to the effect that he should not further represent it in any suit then pending wherein it was interested, and another authorizing the president and secretary pro tern, to employ another attorney, and institute such proceedings as should be necessary to obtain possession of the office, books, papers, funds, and other property of the corporation. All these motions were either made or seconded by said Fredlock. The plaintiff in error had borrowed $3,500 from the building association, and secured the payment of it by a deed of trust upon his real estate in Mineral county. This represented 35 shares of stock. He held an additional 65 shares of stock, and on these he had borrowed $700, for which he had executed his note, and transferred said 65 shares to the association as collateral security. On this stock, and on account of interest and premiums, he had paid to the association about $2,800. It seems that, after the adoption of the resolution providing for the dissolution of the corporation, he purchased 10 shares of stock from Carrie Barker, 10 from M. D. Kern, and 5 from R. H. Helferstay, on which there had been paid about $500. In September, 1898, he endeavored to obtain a settlement with the association by setting off against his indebtedness the withdrawal value of all these shares of stock, and paying the difference, but the representatives of the association declined to settle with him on that basis. On the 24th day of July, 1899, Fredlock conveyed to the Piedmont Feed & Ice Company, a corporation organized by himself, W. W. Kerns and David Brandenbury, who had been employes of his at his livery stable, Carrie Barker, who had been employed by him as bookkeeper, and Taylor Morrison, who was his legal adviser In reference to his business with the building association, the real estate upon which he hadsecured the $3,500, borrowed from the association. The dues, Interest, and premium on his stock and loan having become in arrears, the association caused said real estate to be advertised for sale on the 23d day of September, 1899. On the 19th day of September, Fredlock and the Piedmont Feed & Ice Company presented to the Judge of the circuit court of Mineral county their bill in equity, setting out, among others, the facts hereinbefore stated, and praying an injunction to prevent the sale of said real estate, and that an account might be taken to ascertain the indebtedness of Fredlock to the association, and that any illegal or usurious premium, interest, or other charges made against him on account of said loans might be deducted. On the 9th day of February, 1900, the circuit court of Ohio county enjoined Fredlock and the Piedmont Feed & Ice Company from proceeding any further on said bill filed in the circuit court of Mineral county until the further order of said circuit court of Ohio county, and said injunction was served upon them on the 12th day of February, 1900. It appears from the affidavit of W. C. Clayton, who represented the building association in Mineral county, that at the June term of said court he resisted the making of any decree, and that at the April term he filed a plea in said cause, and as a part of it a certified copy of the decree made by the circuit court of Ohio county, February 9, 1900, and insisted that the building association ought not to be required to answer the bill filed against it in the Mineral county circuit court, and that at the September term Fredlock and the Piedmont Feed & Ice Company and their counsel urged the court to enter a decree referring the cause to a commissioner. Such decree was made and entered on the 13th day of September, 1900. The circuit court of Ohio county has held that Fredlock, in obtaining said decree in the...