I respectfully dissent from the opinion of the majority in this cause. Apparently we do not differ as to the inherent power of the court in this case to conserve and control the subject matter of the litigation during its pendency, so that it may be able to enforce its final decree as to the property affected thereby. Our differences seem to arise out of the extent of the showing required to justify the action of the court within its undoubted powers.
The ownership of bonds of the Federal Government of the par value of $12,000.00 is in dispute. The plaintiffs contend that the defendant administratrix should, in her fiduciary capacity, account for the same; she, the administratrix, admitting in her answer the possession of the bonds, says that she holds the same as her individual property through a gift from her deceased husband. The surety on her bond as administratrix, a party to the cause, asked in its answer that the court require the administratrix to deliver the possession of these bonds to some person to be designated by it, to be held by him until the title thereto should be determined. The plaintiffs joined in this request when the matter was argued in the court below. The administratrix resisted the request and there seems to have been a complete hearing.
It may be admitted that the answer of the surety company was not as specific as good pleading would suggest on the danger of the liability it might incur should the court fail to take control of the bonds in question, but the allegations therein come well within the facts alleged and upon which the court granted the same character of relief through the medium of a receiver, in Petrie v. Buffington, 79 W. Va. 113, 90 S.E. 557; and were, when read in connection with the bill and the answer of the defendant administratrix, all verified, sufficient in my judgment *Page 215 to justify the court below in entering the order complained of.
Being of the opinion that courts are vested with broad inherent power to control property which is the subject of dispute and that such powers should not be curbed except in cases of plain abuse thereof; that from the very nature of this case, the pleadings filed herein and character of the property affected and its admitted possession by the administratrix, it was, in effect, subjected to the control of the court; and that the order complained of worked no substantial prejudice to any party to the suit, but merely served to assure to the court power to enforce its decree upon a decision of the merits of the cause, I would affirm the order of the court below.
A majority of the court being of the opinion to set aside the order as to the possession of the bonds, I agree, of course, that the order in the contempt proceedings falls with it.