Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1898-02-27
An IMPORTANT DECISION
Made by Judge PAUL, Yesterday, IN
the Woods Bros, Case.
The Application for the Appoint
ment of a Receiver Denied-Tho
Full Text of the Opinion OF the
Court ~ Other Legal Matters
Touched Upon Yesterday.

Court ~ Other Legal Matters
Touched Upon Yesterday.
In the Circuit Court, Judge PAUL.,
yesterday, in the case OF Adolpn
Knoke V. the Wood Bros. planning MIL
Company, application for the removal
of the assignee and the appointment
Of a receiver, there was refusal Oh
the petition, and also a refusal to refef
the case to a commissioner. Inc
cause is an interesting one in itself, anu
many Of our citizens are involved,
either as stockholders or creditors.
The text of Judge Paull's decision IS as
follows:
"The bill OF complaint in this case
seeks to set aside the liens claimed py
the Consolidated Building, Loan ana
Trust Company, and Theodore was
ner, attacks the validity OF the as
signment made for the bene1t OF creo,
itors, and asks for the appointment o.
a receiver. 1t is with this last feature
of the bill only that we have TO 40 on
the hearing of this motion. l 40 not
therefore, intend to pass on the sum
cheney OF the bill to secure the rellel
sought-that may be raised on demur-
rer at the proper time.
I'm determining whether the Court
should interfere at this time by taking
the property out of the hands or the
assignee and placing it in the hands OF
a receiver, we must bear in "a TWO
things
First. that this assignment is Tor the
benefit of all creditors, without prefer
ence. and therefore, if the trust IS
properly administered, the interests OIL
all creditors will be equally cared 1or.
In this respect the assignment IS qulte
different from those cases Where
preferences are made, and where the
carving out of the deed OF assign
ment necessarily results in adVah
tages being secured to one class OF
creditors to the prejudice of others.
and second. we must bear in mind
the general rule, which has been rec
ognized and adopted by our Court OF
Appeals: that court OF equity shouiu
exercise extreme caution IN the ap-
pointment of receivers, and be cafelul
that a proper case is presented berore
exercising this. extraordinary anu
often-time harsh procedure. tkunner
v. MARS, 33 w. Va, 663)
ssThis last rule should especially be
observed in cases where IT does Eot
annear by the case made in prellm-
inary motion, that there is need that
the Court should interfere to preserve
the property or protect the creditors.
"The plaintiff asks for receiver on
the following grounds
Il. That the deed of assignment is
void because executed without author
ity.
20. That the deed is void because
fraudulent on its face.
20. That the power conferred on the
assignee will result in some creditors
being preferred.
"a. That the assignee is incompe-
tent
Il. Without intending to pass upon
the important question involved in the
first ground, whether this deed is void
because of want OF notice OF the Dl-
rector's meeting, / am clearly OF the
opinion that the Court is not justified
by the case made by the plaintiff, at
this time, in removing the assignee and
substituting a receiver. Inc allegation
Of the bill as to the meeting which II
is claimed was irregularly held, are not
so clear and definlre as TO call TOR any
more SPECIFIC denial than that which
is contained in the answer. AS these
allegations as to the irregularity OF the
meeting are denied, the Court should
not, Oh a preliminary motion, decide
a question OF such vital Importance
which properly belongs to the hearing
OF the case.
"2. The deed of assignment is not
fraudulent on It's face. Where the pro-
vision contained in the deed of as
signment granting certain power TO
the assignee in closing up the bust
ness of the assignor is designed to
promote the interests OF the creditors
and not intended for the benefit of the
debtor, or where it is intended to be
auxiliary in winding UP the debtors
business, as where he had on hand at
the time of the assignment unmanufac-
tured material, such provision does not
make the deed void on its face. See
the decision of this question in Kyle
v. Harvey, rs w. Va, III; Landeman
v. Wilson, 20 W. Va, TOT; Harden V.
Wagner, % w. Va, 1854.
- AS to the claim that the power
granted the assignee to complete or
DISPOSE of contracts will result in pre-
ferring some creditors, it does not APP
pear to me that any such thing Will
necessarily follow. The provision APP
pears to be wise and prudent one,
considering the business assigned, and
intended not for the benefit Of the
persons who had contracts with the
Company, but for the benefit of all
concerned.
a. AS to the last ground, there is
nothing either in the bill or affidavits
which sustains the claim that the as
signee is incompetent. AS it is not
expected that the assignee shall con-
tinue the business, it is not necessary
that he should possess the qualifica-
lions OF contractor and builder. His
ability as business man is the i'm
portant matter in closing up affairs of
the Company, and that ability is not
questioned, and his answer shows that
he is going about the closing up of the
affairs in a business-like method.
THE trustee in this deed of assign
ment is a purchase and for valuable
consideration, and stands as the rep
resentative of all the creditors, and as
it is not charged that there was any
fraudulent purpose in executing the
deed, or that the assignee had any
notice of any irregularity in it's ex-
ecution, he should not be removed ex-
cept for clearly good reasons.
q