Thompson v. Adams
| Decision Date | 20 November 1906 |
| Citation | 55 S.E. 668,60 W.Va. 463 |
| Parties | THOMPSON v. ADAMS et al. |
| Court | West Virginia Supreme Court |
Submitted June 9, 1906.
Syllabus by the Court.
Where a bill in equity shows a want of jurisdiction, the question may be raised for the first time in this court.
A court of equity, upon the application of a common creditor, is without jurisdiction to appoint a special receiver to take charge of a debtor's property, upon the ground of waste or misappropriation thereof.
Before a court of equity will appoint such receiver, the creditor must have a lien upon or some right to charge the property other than that of being a mere common creditor.
Appeal from Circuit Court, Harrison County.
Bill by Will Thompson against James R. Adams and others. Decree for plaintiff, and Oliver P. Boughner, defendant, appeals. Reversed, and bill dismissed.
Sperry & Sperry, for appellant.
Davis & Davis and E. B. Templeman, for appellee.
The plaintiff, Will Thompson, filed a bill in the circuit court of Harrison county, against James R. Adams and others claiming, among other things, that Adams owned large real estate and personal property; that he was heavily in debt that he had resided in that county for a number of years, but had left and gone to the State of Ohio to visit relatives; that he was last recognized in Cincinnati Ohio, since which time he has not been seen nor heard of although diligent search has been made for him by his relatives and others; and claiming Adams to be indebted to him and many others in large sums of money; that a number of suits were being prosecuted against him, which would mulct him in large and heavy costs; and averring that, by reason of the absence of Adams, his property was going to waste and would greatly depreciate in value, no one being authorized to take possession of and care for it; and asking for a convention of all his creditors and praying for the appointment of a receiver to take charge of his property, and also praying for an injunction restraining certain of his creditors from prosecuting their actions at law against said Adams. The injunction was granted, and the receiver of the personal estate appointed. Oliver P. Boughner was made a party defendant to the suit, but was not enjoined, and, subsequently to the institution of this suit, and during its pendency, he obtained a judgment for $1,164.96, against the defendant Adams, and others, and filed an answer, setting up this judgment. The cause was referred to a commissioner to ascertain and report, among other things, the indebtedness due and owing by the said James R. Adams, the nature, amount, and if any liens, the priorities thereof. The commissioner reported the appellant's judgment as a common debt, not a lien, upon the real estate of Adams, and held it to be payable pro rata with the other common creditors of Adams, to which report Boughner excepted, but the court overruled the exception and confirmed the report in this respect, and Boughner has appealed.
The question which meets us at the threshold of this case is one of jurisdiction. The plaintiff claims to be only a common creditor of the defendant Adams. He has no lien against him and avers no ground of equity jurisdiction. The pretentious ground set up is that Adams has left the county and cannot be found; that he owns large real estate and personal property; that he is largely indebted; and that his property is going to waste. This does not entitle him to come into equity and ask for a receiver. He has shown no right to charge the property. He is only a common creditor, and, as such, equity will not entertain him. He must first reduce his claim to a judgment, or lien, after which, if he files his bill and shows reasons why the court should take charge of the property, a receiver will be appointed. Under our statute (Code 1899, § 28, c. 133 [Ann. Code 1906, § 4031]) a receiver will be appointed where there is danger of loss or misappropriation of the property, or a material part thereof, of a debtor, but this is only done in a proper pending case. It certainly must be at the instance of some one who has a right to charge the property, and the statute does not mean to extend this remedy to every one who claims to be a common creditor. Equity must have jurisdiction independent of the appointment of a receiver. Rainey v. Freeport, etc., Co., 58 W.Va. 424, 52 S.E. 528; Hogg's Equity Pro., § 731; 17 Am. & Eng. Ency. Law, 684; Harwell v. Potts, 80 Ala. 70; State v. Union Nat. Bank, 145 Ind. 537, 44 N.E. 585, 57 Am.St.Rep. 209; Jones v. Schall, 45 Mich. 380, 8 N.W. 68; Mabon v. Ongley Elec. Co., 156 N.Y....
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