Merchants Bank v. Weaver

• Decision Date: 15 June 1938
• Docket Number: 750.
• Parties: MERCHANTS BANK et al. v. WEAVER et al.
• Court: North Carolina Supreme Court

197 S.E. 551

213 N.C. 767

MERCHANTS BANK et al. v. WEAVER et al.

No. 750.

Supreme Court of North Carolina

June 15, 1938

Appeal from Superior Court, Durham County; S. J. Ervin, Jr., Special Judge.

Action by the Merchants Bank against C. H. Weaver and another wherein the plaintiff obtained a judgment which was assigned to A. J. Pollard who procured issuance of execution and instituted proceedings supplemental to execution, wherein notice was issued to the Bank of Chapel Hill. From a judgment on the superior court, on appeal from order of the clerk requiring the bank of Chapel Hill to pay over to defendant C H. Weaver, as his personal property exemption, the sum of $500 from the sum of $1,136.69 in its possession on a credit account with the named defendant, and to pay over the remaining portion of the fund to the clerk of the superior court to be applied on the judgment, the named defendant appeals.

Affirmed.

The relation between a bank and a depositor is that of debtor and creditor.

Under a general deposit creating the relation of debtor and creditor money passes from the depositor to the bank forming a general fund for payment of depositors.

This is a proceedings supplemental to execution instituted by the plaintiff, A. J. Pollard, upon a judgment against the defendant C. H. Weaver, in which said defendant's deposit account in the Bank of Chapel Hill in the sum of $1,136.69 was attached or seized.

The plaintiff, Merchants Bank, procured a judgment against the defendants in the sum of $500 and costs, which judgment was duly docketed in Durham County. The liquidating agent of the Merchants Bank, for a valuable consideration, transferred and assigned said judgment to A. J. Pollard. Pollard had a transcript of said judgment docketed in Orange County and procured the issuance of execution to said county. He likewise instituted proceedings supplemental to execution, and notice was issued to the Bank of Chapel Hill under the statute. Upon its being made to appear to the Clerk that the defendant had a credit account with said bank in the sum of $1,136.69, the Clerk issued an order requiring the said bank to pay said sum into the office of the clerk and directing that all of said sum in excess of $500, personal property exemption, be paid to the judgment creditor as a credit on said judgment.

On appeal, it appearing that the defendant claimed that said deposit account was exempt from execution or seizure for that it was a part of the proceeds of a settlement received by him from the Industrial Commission of the State of New York under an award to him for permanent disabilities, which award under the laws of the State of New York is exempt from all claims of creditors, the Judge found the facts in respect thereto and adjudged that said credit account is subject to execution and attachment in this proceedings. It was thereupon ordered that the Bank of Chapel Hill pay over to the defendant C. H. Weaver as his personal property exemption the sum of $500 and that the said bank pay over the remaining portion of the fund to the Clerk of the Superior Court of Durham County, to be applied on the judgment in this cause. To said judgment the defendant excepted and appealed.

H. A. Whitfield, of Chapel Hill, and S. M. Gattis, Jr., of Hillsboro, for appellant.

Forrest A. Pollard, of Durham, for appellee.

BARNHILL Justice.

The defendant in 1930, while temporarily residing in the State of New York and while engaged in industrial employment as a mechanic for the General Motors Corporation, suffered personal injury, resulting in a permanent disability. He was awarded compensation for said injury by the Industrial Commission of the State of New York and thereafter from July, 1930, to November, 1937, received said compensation in monthly installments. In November, 1937, the Industrial Commission of the State of North Carolina, at the request of the Industrial Commission of New York, held a hearing to consider and ascertain said Weaver's physical condition and to determine whether it would be just and fair to settle his claim by a lump sum payment. The North Carolina Industrial Commission reported to the New York Industrial Commission, recommending a lump sum settlement of said claim by the payment of $4,000. Thereupon, said claim was settled by the payment to the defendant of the sum of $4,000 out of the State Insurance Fund of the State of New York, which payment was made through the Industrial Commission of the State of North Carolina. A part of this money was deposited in the Bank of Chapel Hill and the deposit credit of $1,136.69, which is in controversy in this proceedings, represents the balance of said deposit now due the defendant.

Under the laws of the State of New York the money paid to the defendant in settlement of his claim is exempt from all claims of creditors. We are not required, however, to determine whether this exemption follows the money into the State of North Carolina and is now available to the defendant. The defendant has parted with the money and now owns a credit account with the Bank of Chapel Hill. This is a solvent credit purchased with the money received by him.

The relation between a bank and a depositor is that of debtor and creditor. Reid v. Charlotte National Bank, 159 N.C 99, 74 S.E. 746; Graham v. Proctorville Warehouse, 189 N.C. 533, 127 S.E. 540; Page Trust Co. v. Rose, 192 N.C. 673, 135...