Weigand v. Alliance Supply Co.
| Decision Date | 27 November 1897 |
| Citation | 28 S.E. 803,44 W.Va. 133 |
| Parties | WEIGAND et al. v. ALLIANCE SUPPLY CO. et al. |
| Court | West Virginia Supreme Court |
Submitted January 19, 1897
Syllabus by the Court.
1. A corporation is not dissolved by the fact that it has lost or conveyed all its assets away; and, notwithstanding such fact not less than one-third in interest of the stockholders of such corporation have a right, under section 57, c. 53, Code 1891, to file their bill in equity, showing sufficient cause for dissolution thereof.
2. A case in which it is held to be proper to appoint the trustee under general assignment to be special receiver.
3. "A person is insolvent, within the meaning of section 2 c. 74, Code 1891, when all his property is not sufficient to pay all his debts." Wolf v. McGugin, 16 S.E 797, 37 W.Va. 552, Syl., point 1.
4. Neither the circuit courts nor the judges thereof are authorized, under the statute providing for the employment of shorthand reporters in said courts, to employ or authorize the employment of said reporters before commissioners in executing the orders or decrees of reference of such courts.
5. Where a report of a commissioner, under an order or decee of reference is returned, it is the duty of the court, when called to its attention, to see that the certificate under oath, of the fees and time employed of the commissioner, as required by section 5, c. 137, is annexed thereto, and that no fees be allowed or paid thereon until such certificate is made.
6. Syllabus, point 15, Crumlish's Adm'r v. Railroad Co., 22 S.E. 90, 40 W.Va. 627 approved.
7. Extra allowances to trustees and receivers should not be made in the absence of evidence of extraordinary services rendering such allowances just and reasonable.
8. Where a fund is brought into a court of equity through the services of an attorney, who looks to that alone for his compensation, although his interest cannot technically be called a "lien," he is regarded as the equitable owner of the fund, to the extent of the reason able value of his services; and the court administering the fund will intervene for his protection, and award him a reasonable compensation, to be paid out of it.
Appeal from circuit court, Mason county; Guthrie, Judge.
Bill by Adam Weigand and others against the Alliance Supply Company, a corporation, and others, for appointment of a receiver. From a decree appointing a receiver, and from orders refusing petitions to be made parties, certain of defendants appeal. Reversed and remanded.
John L. Whitten and Tomlinson & Wiley, for appellants.
Chas. E. Hogg and J. S. Spencer, for appellees.
At March rules, 1895, of Mason county circuit court, Adam Weigand, C. T. Blessing, David Roush, S. J. Grimm, W. A Carson, F. E. Gill, G. M. Nease, J. P. Hurlow, F. M. Gill, William Thomas, John Black, H. N. Rollins, W. R. Gill, J. B. Canter, J. E. Snyder, Alonzo Carsey, W. H. Carpenter, Hugh Daugherty, and J. M. Grimm filed their bill in chancery against the Alliance Supply Company, a corporation, E. J. Summerville, trustee, C. E. F. Sayre, and others, alleging that said supply company was incorporated under the laws of this state, the 2d day of December, 1891, for the purpose of carrying on a general merchandise business at Letart, in Mason county; that, in addition to the number of shares subscribed for and held by the corporators (whose names are mentioned as defendants), there had been sales of additional shares from time to time, for the purpose of increasing the capital stock, and that the number of outstanding shares at that time was about 330, and that there had been paid into the treasury, on account of subscriptions and sales, about the sum of $1,400, leaving about the sum of $250 still due and unpaid on account of said subscriptions and sales; that plaintiffs together held and were the owners of more than one-third of all the stock of said company subscribed and sold; that on the 23d day of December, 1891, the corporation purchased a lot from H. N. Rollins and wife, in the town of Letart, and erected a storehouse and other houses suitable for the purpose of carrying on their said business, at a cost of about $1,200, and purchased and placed in said storehouse a stock of goods for the purpose aforesaid; that on the 28th day of June, 1892, the said corporation, in order to obtain additional capital with which to carry on its business, made and executed a note for $1,300 in favor of S. J. Grimm, David Roush, and A. Weigand, and on the 15th day of January, 1893, made and executed its note for $350 in favor of David Roush, and by means of said notes obtained and used in its said business the said sums of $1,300 and $350, respectively; that, at the time of the execution of said notes, it was understood and agreed by and between the said corporation and the said S. J. Grimm, David Roush, and A. Weigand that the said notes should be secured at once by a deed of trust upon the company's said real estate, and exhibited said notes with the bill; that notwithstanding the said agreement and understanding, and also notwithstanding several resolutions of the stockholders of said corporation in general meeting assembled, ordering and directing the execution of said deed of trust for the purpose aforesaid, the said corporation failed and neglected to execute the same for a long space of time; but that on the last day of September, 1893, the said board of directors of said corporation, and on the 9th day of November, 1893, the president and sec retary thereof, respectively, executed two several deeds of trust securing both of said notes, in compliance with the original understanding and agreement, as aforesaid (both of said deeds were exhibited with the bill); that on the 6th day of December, 1893, the board of directors of said corporation then in office adopted a resolution directing the execution of another deed of trust for the purpose of securing said notes, and also directing the assignment of certain notes and accounts to the said S. J. Grimm, David Roush, and A. Weigand, and to the said David Roush, as additional collateral security for the payment of said two several notes, a copy of which resolution was exhibited with the bill; that on the 8th day of December, 1893, in pursuance of the resolution last mentioned, the said Alliance Supply Company made and executed a deed of trust to J. S. Spencer, trustee, upon the real estate of said corporation, to secure to said S. J. Grimm, David Roush, and A. Weigand, and to said David Roush, the payment of said notes, which deed of trust was exhibited; that on the 13th day of December, 1893, the said board of directors of said corporation adopted a resolution, reciting, among other things, the following: "Whereas, it appears to the satisfaction of the board of directors of this company that, owing to the embarrassed financial condition of this company, its business cannot be further carried on except at a constant loss; and whereas, in the opinion of this board, it is to the interest of this company and to the creditors thereof that all its property and assets, real and personal, be conveyed to a trustee for the benefit of all its creditors,"--and directed the president and secretary of said company to make, execute, seal, and acknowledge, and deliver for record, a deed of trust to E. J. Summerville, trustee, upon all the real estate of the company, and all their goods, wares, and merchandise, and store furniture and fixtures, and all bonds, notes, accounts, claims, and demands then due and owing, or thereafter to become due and owing to said company, for the purpose aforesaid, all of which, with many other provisions in said resolution contained, will more fully appear from the copy of the same, exhibited with the bill. The bill further alleged that, in compliance with said resolution, the president and secretary, for and on behalf of the said company, on the 13th of December, 1893, made and executed the said trust deed; that all of said deeds were duly recorded in the clerk's office of the county court of Mason county; that the said trustee, Summerville, took possession of the property conveyed by said trust deed, in accordance with the terms and provisions thereof, on the ___ day of December, 1893; that, for a long time prior to the execution of said deed of trust to Summerville, the said corporation, through its officers and agents, had endeavored to increase the amount of its capital stock by sales of additional shares, and had endeavored in other ways to make some arrangements whereby the business of said corporation could be continued as contemplated by its organization, but were unable to make any arrangement that would warrant the further continuance of their said business; that a general meeting of the stockholders of said corporation was called on the 8th day of December, 1893, to meet on January 3, 1894, which meeting was for the purpose of devising some means whereby the business of said corporation might be continued; that, before said meeting was held, the action of some of the creditors of the corporation necessitated the said trust deed to E. J. Summerville in order to prevent a sacrifice of its property; that the stockholders met in general meeting, pursuant to the notice, at which meeting there was a large majority of the stock of said corporation present; and that the stockholders at the said meeting ratified, approved, and confirmed the action of the board of directors in the several matters before recited, to wit, the assignment of certain notes and accounts of the company to said S. J. Grimm, David Roush, and A. Weigand, and to said David Roush, as collateral security, in addition to the deed of trust aforesaid for the payment of said several notes in favor...
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