Black v. Consolidated Ry. & Power Co.

• Citation: 74 S.E. 468,158 N.C. 468
• Parties: BLACK v. CONSOLIDATED RY. & POWER CO. et al.
• Decision Date: 03 April 1912
• Court: United States State Supreme Court of North Carolina

74 S.E. 468

158 N.C. 468

BLACK v. CONSOLIDATED RY. & POWER CO. et al.

Supreme Court of North Carolina

April 3, 1912

Appeal from Superior Court, Cumberland County; Whedbee, Judge.

Action by Neill Black against the Consolidated Railway & Power Company, and W. D. McNeill, as receiver of the company. From a judgment overruling the demurrer to the complaint, the receiver appeals. Affirmed.

In determining whether good cause is shown for a separate action against a receiver of an insolvent corporation, the convenience of the witnesses, additional cost, and various circumstances addressed to the trial court's discretion should be considered.

This action was commenced on the 22d day of July, 1909, against the Consolidated Railway & Power Company, successor to Little River Power & Transmission Company, and is to recover judgment for the value of certain material, which the plaintiff alleges he furnished the defendants, for the purpose of building a power house and repairing a dam, and to enforce a lien therefor. The complaint was filed on the 10th day of August, 1909, and no answer was filed by the defendant. At May term, 1910, of the superior court of Cumberland county, an order was made in said action, giving permission to make W. D. McNeill, receiver of the Consolidated Railway & Power Company, a party defendant, and summons was duly served on him in May, 1910. On the 9th of September, 1910, the plaintiff filed an amended complaint alleging the appointment of McNeill, receiver, the service of the summons on him, and adopting the allegations of the original complaint. At May term, 1911, of said court, said receiver filed a demurrer to the complaint upon the following grounds: First. That said complaints do not state a cause of action, for that, as appears on the face thereof, the property which the plaintiff seeks to subject to the payment of his alleged debt is in the hands of a duly appointed and acting receiver. Second. That said complaints fail to state a cause of action, in that it appears upon the face thereof that said action is an attempt upon the part of the plaintiff to interfere with property in the hands of a duly appointed and acting receiver. Third. That said complaints do not state a cause of action, for the reason that it does not appear upon the face thereof that plaintiff obtained permission of the court appointing the receiver to make him a party defendant herein.

Fourth. That said complaints do not state a cause of action, because the plaintiff fails to allege therein that he obtained permission of the court appointing said receiver in the cause or action in which he was appointed to make him a party defendant herein. Fifth. That said complaints do not state a cause of action, for the reason that plaintiff fails to allege therein that he obtained, before the institution of this action and in the cause in which the receiver was appointed, the permission of the court to sue the receiver. Sixth. That said complaints do not state a cause of action in that there is no allegation that plaintiff has ever presented his claim in writing to the receiver of the defendant company, or that said receiver ever passed on same and reported his finding thereon to any term of superior court, or that the plaintiff has ever excepted to a finding and report on said claim by the receiver and demanded a jury trial thereon. Seventh. That said complaints do not state a cause of action, for the reason that it does not appear therein that the lumber alleged to have been furnished was furnished to the receiver in or for the operation of the property in his hands as receiver. Eighth. That said complaints do not state a cause of action, because there is no allegation therein that the lumber alleged to have been furnished by plaintiff was furnished with the understanding between plaintiff and defendant company that same was to be used in building or repairing buildings on the purchaser's land or otherwise improving the same. The demurrer was overruled, and the receiver excepted and appealed.

R. W Herring and Sinclair & Dye, for appellant.

ALLEN J.

Every presumption is in favor of the regularity of the proceedings in the superior court, and that the judgment rendered is one authorized by law, and as there is nothing in the record to show the date of the appointment of the receiver, or to indicate that he was not appointed after the commencement of the action, we must assume that the action was commenced when there was no receiver--if necessary to...