Clark v. Johnston

15 W. Va. 804

• Court: West Virginia Supreme Court
• Decided: December 13, 1879
• Status: Published

Opinion

Green, President,

delivered the opinion of the Court:

The counsel in this cause have elaborately discussed a number of questions, which we think it is unnecessary for this Court to consider: As whether, as the bill charges the defendant as a trespasser merely, a receiver could properly be appointed; and whether, the defendant being solvent, the plaintiff had not a full and adequate remedy at law; and whether therefore the court ought not to have refused to appoint a receiver in this cause; whether a receiver should have been appointed in a cause, in which all the equities in the bill are positively denied by the answer; whether the court ought not to have refused to appoint a receiver, because, as is contended, the only equity in the bill is the necessity of a discovery, and the proof of the oil shipped by one of the affidavits, it is insisted, shows that there was really no necessity to call for such discovery; and whether, as the defendant alleges that the affidavits of the plaintiff contradict the bill showing that the defendant claims these wells, and is not a mere trespasser as alleged in the bill, this ought not to have prevented the court from appointing a receiver. And the appellant’s counsel insist that the affidavits taken altogether show that the defendant has no interest in these wells, has not claimed any, and has never trespassed on this property, and has really no interest in the oil pumped from said wells, and has never received anything therefrom, and claims nothing; that he never exercised any control over these wells, and has nothing to do with them, and therefore it is insisted that the court had no authority to appoint a receiver. And that the real 'object of the bill is to oust B. S. Compton from his possession of this property without making him a party.

It seems to us that there is no necessity or propriety in our considering these numerous questions, which have been elaborately discussed; for the defendant’s answer states emphatically that he does not now, and never did, claim any interest in these wells, or in the oil' that has been produced from them; and therefore it follows as a matter of course he has no kind of interest in the question, whether these wells and the oil that has been produced from them goes into the hands of a receiver or not. If they were utterly destroyed he would, according to his own statement, be in no manner injured. The only question before us for ns to decide is, whether there is any error in the order of the j udge appointing this receiver injurious to the defendant; for if the order or decree is not prejudicial to the appellant, it is the universal practice of all courts to affirm the decree, if not complained of by the appellees. We need not consider whether the judge should or should not have made this order; for though he ought not to have made it, yet if the defendant is not thereby prejudiced or injured, this court, according to its universal practice, will not reverse the decree, if the appellees desire it affirmed; and the appellant admits that he is not injured by this order. If B. S. Compton is injured by this order, he cannot complain at present in this Court, as he is not either an appellant'or appellee and is not a party in any form to this suit, nor does the record show he ought to have been made a party. The defendant’s answer does not state that he had any interest in the subject-matter of'the suit, nor does his affidavit; and the affidavit of B. S. Compton was taken, and he does not show or claim that he has any interest in the matter. The inference which we must draw is, that if he really had any interest in the matter, care was taken both by the defendant and by himself that it should not appear in the record, apparently that he might not be made a party defendant by order of the court.

The order of the judge therefore, made in vacation, on the 12th day of June, 1878, must be affirmed ; and the appellee must recover of the appellant his costs in this court expended, and $30.00 damages.

Judges Haymond and Johnson concurred.

Decree Affirmed.