Benson v. Roberson

• Decision Date: 31 January 1946
• Docket Number: No. 747.,747.
• Citation: 226 N.C. 103,36 S.E.2d 729
• Court: North Carolina Supreme Court
• Parties: BENSON. v. ROBERSON et al.

36 S.E.2d 729

226 N.C. 103

BENSON.

v.ROBERSON et al.

No. 747.

Supreme Court of North Carolina.

Jan. 31, 1946.

Appeal from Superior Court, Forsyth County; Zeb V. Nettles, Judge.

Proceeding in the matter of the liquidation of a partnership, wherein a receiver was appointed who allowed the claim of plaintiff John H. Benson and placed the claims of defendants Willie Roberson and Joe White and another claimant in the second class. From a judgment of the superior court confirming the receiver's report, the defendants and other claimants adversely affected appeal.

Error and cause remanded.

Exceptions to report of receiver as to allowance of claims.

The plaintiff's claim for $775.62 was allowed, and those of other claimants were placed in second class. The receiver's report was approved and confirmed by the court. Defendants and other claimants adversely affected excepted and appealed.

Joe W. Johnson, of Winston-Salem, for plaintiff.

A. B. Cummings, of Winston-Salem, for defendants Willie Roberson and Joe White.

E. M. Whitman, of Winston-Salem, for claimants Phoebe Harrell, James R. Harrell, Lizzie Jarrett and Rosa Lee Waiters.

DEVIN, Justice.

This appeal arose out of the liquidation of the partnership heretofore existing between plaintiff and defendants under the name of Royal Club Beer Garden. A receiver was appointed who heard evidence of the various claimants and made report of the claims which he allowed, including that of the plaintiff for $775.62. Claims of appellants Harrell and others were allowed, but placed in the second class. G.S. § 59-70. The assets are insufficient to pay more than a small percentage of claims as allowed by the receiver.

The report of the receiver's findings was filed by him October 19, 1945, at 4:10 p. m., and copies mailed to counsel for appellants on that day. A term of Superior Court began in Forsyth County October 22d. Exceptions to the report were filed in the cause by claimants Harrell and others October 26th, and by defendants Roberson and White October 27th. Exceptions were noted to the findings and allowance of the receiver, and jury trials demanded. G.S. § 55-153.

Another one week term of the Superior Court began October 29th, and on October 30th the court entered an order holding that no objections to the receiver's report had been filed within the first three days of the term which began October 22d, and thereupon confirmed the receiver's report. Payment of claims as reported was directed to be made. Both defendants and...