The opinion
BraNNON, PRESIDENT,
(dissenting):
I cannot see that Brown should pay the receiver’s compensation. The general rule is that such compensation is paid out of the fund. Elk Fork, Co. v. Foster, 99 Fed. 495 ; Kerr v. Hill, 27 W. Va. 616 . There is no need of this large extra expenditure, because there is no danger of loss or suggestion of insolvency. It was only a'conflict of title to oil. Freer v. Davis, 52 W. Va. 37 . If the plaintiff, having no legal ground for a receiver, chose to ask one, she should pay for his services.
There was no emergency calling for the appointment of a receiver without notice. Notice is required before receiver can be appointed in vacation. Batson v. Findley, 52 W. Va. 343 ; Ruffner v. Mair, 33 Id. 655; Smith on Be- *253 ceivers, 14. But that was error only, and did not make the appointment void, so as to refuse commission. Alderson on Receivers, 157, 1(58. But can we not consider the fact that notice was not given, and that there was no need of a receiver, in exercising discretion as to piling the costs on Brown? Though the appointment was reversible for want of notice and good ground, we cannot reverse it, because appeal from that order is barred.
I do not think there can be an ax>peal or writ of error resting alone on error as to costs. The Constitution, Art. 8, section 3, excludes costs, both as to sole ground of appeal or as going to make up the sum for appeal. But what are costs under that clause? I think it means general costs, taxable under the statute, not special or extraordinary allowances, such as pay of a receiver. I think appeal lies as to such allowances. Cramford v. Fickey, 41 W. Va. 544 , ( 23 S. E. 662 .) My reason is that they are not “costs” under said clause. Therefore, an appeal lies in this case.