Comm'r Of Banks Ex Rel. Farmers' &. Merch.S' Bank v. Harvey Et Ux
| Citation | 202 N.C. 380,162 S.E. 894 |
| Decision Date | 16 March 1932 |
| Docket Number | No. 209.,209. |
| Court | United States State Supreme Court of North Carolina |
| Parties | COMMISSIONER OF BANKS ex rel. FARMERS' &. MERCHANTS' BANK. v. HARVEY et ux. |
Appeal from Superior Court, Lenoir County; Devin, Judge.
Action by the Commissioner of Banks, on the relation of the Farmers' & Merchants' Bank, against W. B. Harvey and his wife, Nannie L. Harvey. From a judgment overruling defendant wife's demurrer to the complaint, she appeals.
Reversed.
This is an action on a note executed by the defendant W. B. Harvey, and indorsed, before delivery, by the defendant Nannie L Harvey. The note is payable to the order of the Farmers' & Merchants' Bank of Kinston, N. C., and was due and payable on June 19, 1931. No payments have been made on said note by either of the defendants. There is now due thereon the sum of $1,250, with interest from June 19, 1931.
On April 30, 1931, the Farmers' & Merchants' Bank was closed by order of the commissioner of banks of North Carolina. Itsassets, including the note sued on in this action, are now in the hands of a liquidating agent appointed by the commissioner of banks, under statutory authority.
This action was begun on August 24, 1931, by the commissioner of banks, on the relation of the Farmers' & Merchants' Bank.
The defendant Nannie L. Harvey demurred to the complaint on the ground that there is a defect of parties plaintiff, for that the commissioner of banks is not a party to the action, as appears from the complaint. The action was heard on the issue of law raised by the demurrer. The demurrer was overruled. From judgment overruling the demurrer, the defendant Nannie L. Harvey appealed to the Supreme Court.
Wallace & White, of Kinston, and A. A. F. Seawell, Asst. Atty. Gen., for plaintiff.
Rouse & Rouse, of Kinston, for defendants.
The issue of law raised by the demurrer to the complaint in this action is whether the action on the note set out in the complaint can be maintained in the name of the "Commissioner of Banks ex rel. Farmers' & Merchants' Bank." It is contended by the defendant Nannie L. Harvey that, on the facts alleged in the complaint, the action can be maintained only by the person now holding the office of commissioner of banks. This contention was not sustained by the judge of the superior court, who overruled the demurrer. In this there was error. The demurrer should have been sustained.
Chapter 243, Public Laws of North Carolina 1931, is entitled, "An Act to create the office of commissioner...
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Dobias v. White, 171
...it in permitting the amendment in question. Carolina Power & Light Co. v. Bowman, 231 N.C. 332, 56 S.E.2d 602; Commissioner of Banks v. Harvey, 202 N.C. 380, 162 S.E. 894. The evidence discloses that the feme plaintiff was present only at the time of the original transaction between Dr. Dob......
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Comm'r Of Banks Of North Carolina v. Carrier, 562.
...as this must be prosecuted in the individual name of the commissioner of banks and not under his official title. Commissioner of Banks v. Harvey, 202 N. C. 380, 162 S. E. 894; Commissioner of Banks v. Johnson, 202 N. C. 387, 162 S. E. 895; Commissioner of Banks v. Mills, 202 N. C. 509, 163 ......
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