Greenville Banking & Trust Co. v. Leggett

• Decision Date: 10 March 1926
• Docket Number: 167.
• Citation: 131 S.E. 752,191 N.C. 362
• Parties: GREENVILLE BANKING & TRUST CO. v. LEGGETT.
• Court: North Carolina Supreme Court

131 S.E. 752

191 N.C. 362

GREENVILLE BANKING & TRUST CO. v. LEGGETT.

No. 167.

Supreme Court of North Carolina

March 10, 1926

Appeal from Superior Court, Pitt County; Stack, Judge.

Action by the Greenville Banking & Trust Company, receiver of the Planters' Bank, against Talitha Leggett. From a judgment for plaintiff, defendant appeals upon exceptions. Action dismissed.

Where a justice court has no jurisdiction, an appeal to the superior court does not invest such court with jurisdiction.

On July 4, 1923, the Corporation Commission brought suit against the Planters' Bank, alleging its insolvency, and obtained an order appointing the plaintiff as permanent receiver of its assets. The receiver made its report on May 6, 1924, and the judge of the Fifth judicial district made an order on May 7 1924, authorizing the payment to creditors of a dividend of 33 1/3 per cent. but withholding any dividend which would otherwise be due the stockholders until their individual liability should be adjusted. In the order it was provided that the receiver should make an assessment against the stockholders to the extent of their liability, as provided in case of a bank's insolvency, and should bring suit or should take such legal proceeding as was necessary to enforce collection.

The defendant had two shares of stock in the insolvent bank, each of the par value of $50. She had on deposit $102. By mistake she was paid $34, presumably under the order authorizing a dividend of 33 1/3 per cent., and she was paid $17 in addition as a dividend of 16 2/3 per cent., making a total of $51. According to this calculation, there was a remainder of $49, which was the measure of her liability for the assessment on her stock. The plaintiff brought suit before a justice of the peace to recover this amount. The following instruction was given the jury:

"Under the law, a stockholder in a bank is liable for double the amount of the stock, in this case, she, the defendant admits she had two shares of the par value of $50 each, which would make $100, but the plaintiff admits credits, bringing it down to $49. The court instructs you, if you believe the evidence in the case, your answer should be $49, with interest from June 8, 1925, which was the date this action was brought, if you don't believe it, answer it, nothing."

The defendant excepted. Judgment for the plaintiff. Appeal by the defendant upon exceptions.

J. C. Lanier and S. J. Everett, both of Greenville, for appellant.

Julius Brown, of Greenville, for appellee.

ADAMS J.

The defendant excepted to the instruction given, and in the argument here she contended that neither the justice of the peace nor the superior court on appeal had jurisdiction of the action. The jurisdiction of the superior court was derivative; it could not proceed to judgment, therefore, unless the justice had original jurisdiction. Drainage Comm'rs v. Sparks, 103 S.E. 142, 179 N.C. 581; Singer Co. v. Burger, 107 S.E. 14, 181 N.C. 241, 248; Hall v. Artis, 118 S.E. 901, 186 N.C. 105. The plaintiff says the question of jurisdiction was not raised in the trial court, and should not now be considered; but it has been held that a motion to dismiss for want of jurisdiction may be made for the first time in the Supreme Court. Tillery v. Fraternal Ass'n, 80 S.E. 1068, 165 N.C. 262; McDonald v. MacArthur, 69 S.E. 832, 154 N.C. 122.

A statute enacted in 1897 provided that the stockholders of every bank or banking association chartered in this state should be individually responsible equally and ratably for all contracts, debts and agreements of such association to the extent of the par value of their stock. This statute, as amended, is section 237 of the Consolidated Statutes.

It was construed in Smathers v. Bank, 47 S.E. 893, 135 N.C. 410, the court saying:

"In winding up the affairs of an insolvent corporation it is best that, as nearly as may be, the court having original jurisdiction bring all parties

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