Bynum v. Fidelity Bank of Durham

• Decision Date: 31 January 1941
• Docket Number: 749.
• Citation: 12 S.E.2d 898,219 N.C. 109
• Parties: BYNUM v. FIDELITY BANK OF DURHAM et al.
• Court: North Carolina Supreme Court

12 S.E.2d 898

219 N.C. 109

BYNUM v. FIDELITY BANK OF DURHAM et al.

No. 749.

Supreme Court of North Carolina

January 31, 1941

The order and decree of the Court below indicates the controversy and is as follows: "This cause coming on to be heard before the undersigned Judge Presiding over the Superior Court of Durham County at the request of counsel for Leon W Powell, Administrator of the Estate of Joanna Leathers, upon the appeal of the plaintiff duly taken from the order of the Clerk of the Superior Court of Durham County entered on the 4th day of April, 1940, at which hearing in the Superior Court both the plaintiff Mattie Bynum and the defendant The Fidelity Bank were represented by their respective counsel and Leon W. Powell, Administrator of the Estate of Joanna Leathers, appeared through his counsel and tendered a judgment dismissing said appeal which the undersigned declined to sign, to which ruling said defendant in apt time excepted, and both the Administrator and The Fidelity Bank having objected in open Court to the allowance of any change in the said order of the Clerk, and the Court, after hearing the evidence, the argument of counsel and the pleadings, is of the opinion and finds the following to be the facts:

"1. That this is an action brought by the plaintiff against the Fidelity Bank of Durham, North Carolina, by summons issued and complaint filed March 4, 1940, for the recovery of certain funds on deposit in said Bank at the time of the institution of this action in the sum of $10,218.10.

"2. That since the institution of this action Leon W. Powell has been appointed by the Clerk of the Superior Court of Durham County as Administrator of the Estate of Joanna Leathers, and duly qualified and entered upon his duties as Administrator and as such Administrator has without collusion with said Bank also made demand upon The Fidelity Bank, the defendant in this action, for the said funds which are the subject matter of this action prior to the expiration of time to file answer.

"3. That The Fidelity Bank has refused to pay said funds to the said Leon W. Powell, Administrator, and has also refused to pay said funds to Mattie Bynum, the plaintiff in this action.

"4. That The Fidelity Bank, the defendant in this action, on March 21, 1940, filed with the Clerk of the Superior Court of Durham County, under Section 460 of the Consolidated Statutes, a duly verified Petition and Application for Substitution of Party Defendant; that there was also filed therewith an affidavit of E. S. Booth, Vice President of The Fidelity Bank; that the said E. S. Booth, Vice President of The Fidelity Bank, in his said affidavit recited that the said Leon W. Powell, Administrator, was not a party to the said action; that he had made demand against The Fidelity Bank for the money sued for in the above entitled action without collusion with the said The Fidelity Bank, and that the amount of the said fund was $10,218.10, and that the said The Fidelity Bank, upon its verified petition, prayed that it be granted a hearing upon the said petition and application and that the Court make an order substituting the said Leon W. Powell, Administrator, in its place as a defendant in said action, upon the payment by it into Court of the said sum of $10,218.10, and that it, the Bank, be thereupon discharged from liability on account of said sum to the plaintiff and also to the said Administrator; that a notice of the filing of said petition and of the hearing thereon was served upon the counsel for the plaintiff Mattie Bynum, and also upon the counsel for Leon W. Powell, Administrator; that the plaintiff Mattie Bynum in apt time filed an answer to this petition.

"5. That upon the hearing of the said petition of the said The Fidelity Bank, and its application for the substitution of Leon W. Powell, Administrator, as defendant in said action the said W. H. Young, Clerk of the Superior Court, having before him the said petition of The Fidelity Bank and application for the substitution of Leon W. Powell, Administrator, as a party defendant, and after argument of counsel and in the presence of counsel for plaintiff and defendant in the above entitled action and in the presence of H. G. Hedrick and C. V. Jones, attorneys for Leon W. Powell, Administrator, who attended the said hearing in response to a notice duly served upon Leon W. Powell, Administrator, announced that he would grant the petition of The Fidelity Bank and substitute the said Leon W. Powell, Administrator, as party defendant upon the payment into Court of the said sum of $10,218.10, and duly made and entered an order to that effect; that the plaintiff Mattie Bynum in apt time tendered findings and duly excepted and appealed from the signing and entry of said order.

"6. That the defendant The Fidelity Bank, through its counsel, Jones Fuller, Esq., has stated in open Court that it claims no interest in the funds which are the subject matter of this controversy.

"7. That the Court is of the opinion that the status quo existing at the time of the death of Joanna Leathers and at the time of the institution of this action should be preserved insofar as possible until the determination of the issues in order that the rights of all the parties involved in this controversy may be fairly and justly protected and decided; that in order to do this The Fidelity Bank is a necessary and proper party defendant and should remain a party to these proceedings to the conclusion of this litigation, without liability, however, for any court costs or expenses, including attorneys' fees, by consent of plaintiff to be hereafter fixed by the Court in connection with the same, and said Bank should hold the funds in controversy in its possession until the termination of this litigation, in order that the same may be disbursed in accordance with such judgment as may be finally entered by the court.

"8. That Leon W. Powell, Administrator of the Estate of Joanna Leathers, is entitled to assert in this action such claim as he may have, if any, against the funds involved, and through his attorneys has made a motion to strike certain portions of the plaintiff's complaint, and has entered an appearance in this action.

"9. That the order heretofore entered by the Clerk of the Superior Court of Durham County on the 4th day of April, 1940, should be set aside to the end that this order may be entered.

"10. That pursuant to the signing of said judgment The Fidelity Bank paid to the Clerk of Superior Court the sum of $10,218.10.

"Now, Therefore, It Is Hereby Ordered, Considered, Adjudged and Decreed:

"(1) That the order of the Clerk of the Superior Court of Durham County heretofore entered on April 4, 1940, be, and the same is hereby set aside.

"(2) That the Fidelity Bank remain a party defendant to this proceeding pending the final determination of the issues involved; that the Clerk of the Superior Court of Durham County repay to the Fidelity Bank the sum of $10,218.10 without cost or deduction, and that said Bank retain in its possession, on interest, said funds in controversy until there has been a final determination of the issues involved in this action; that since The Fidelity Bank is claiming no interest in said funds it is hereby ordered that no court costs in this action be taxed against said Bank, and that by consent of plaintiff at the trial of this action in the Superior Court any expenses of the Bank, including its attorneys' fees, be deducted from said deposit and paid to said Bank; that said Bank is hereby allowed thirty (30) days from the date of the entry of this order in which to answer or otherwise plead to the complaint filed herein.

"(3) That Leon W. Powell, Administrator of the Estate of Joanna Leathers, be, and he is hereby allowed thirty (30) days from the date of this order in which to file pleadings setting forth any claim which he desires to assert against the funds in question in this controversy.

"(4) Leon W. Powell, Administrator of the Estate of Joanna Leathers, having notified the Court through his attorney that he intended to appeal from the order overruling the motion to strike certain portions of the complaint, The Fidelity Bank is hereby allowed thirty (30) days from the final determination of any appeal from said order in which to file answer or other pleadings in this matter. This the 11th day of May, 1940. Clawson L. Williams, Judge Presiding."

To the signing of the foregoing order, and the rulings of his honor as contained therein, and to his failure to find facts requested by counsel for defendant Leon W. Powell, administrator, as set forth in the formal request filed in this cause and presented to his honor prior to the entry of the foregoing order, the defendant, Leon W. Powell, administrator, excepted, assigned error and appealed to the Supreme Court. The material exceptions and assignments of error and other material facts will be set forth in the opinion.

Hedrick & Hall and Claude V. Jones, all of Durham, for appellant.

Victor S. Bryant and F. C. Owen, both of Durham, for appellee.

CLARKSON Justice.

The record discloses that the Fidelity Bank of Durham, N. C., did not appeal from the order and decree of the Court below. The defendant Leon W. Powell, administrator of the estate of Joanna Leathers, deceased, alone appealed.

The first question involved, as stated by defendant Powell, administrator, is as follows: "1. Did the Court err in overruling substituted defendant's motions to strike from the complaint paragraphs 3 through 15, or any of them?" We think not.

Mattie Bynum, the plaintiff, brought this action against the Fidelity Bank of Durham, N. C., alleging a donatio mortis causa, made by Joanna Leathers to her in her last fatal illness and...