State v. Simonton
| Decision Date | 31 January 1878 |
| Citation | 78 N.C. 57 |
| Court | North Carolina Supreme Court |
| Parties | State on relation of ATTORNEY GENERAL v. R. SIMONTON, Executrix, and others. |
OPINION TEXT STARTS HERE
CIVIL ACTION, in the nature of a Quo Warranto tried at Fall Term, 1877, of IREDELL Superior Court, befere
This action was brought by the plaintiff upon the representations of parties interested under C. C. P. § 366, to annul the charter of the Bank of Statesville. The plaintiff moved for judgment on the complaint for want of an answer, and thereupon T. L. Patterson and others being judgment creditors of the Bank asked leave to interplead, which was refused upon the ground that as a matter of law the motion could not be entertained.
The complaint alleged substantially upon information and belief:--
1. That authority was given to certain corporators, by an Act to charter the Bank of Statesville, (Private Laws 1869-'70, ch. 64,) to open books of subscription, and when 200 shares were taken and the money paid in, the stockholders so subscribing were authorized to meet and organize the corporation; but that no books of subscription were ever opened, nor organization had, by which the privileges conferred by said charter could accrue.
2. That R. F. Simonton, now deceased, without the knowledge and consent of the other corporators, caused to be writt n in a book procured by himself the form of a subscription of stock, and the names of the other corporators as subscribers for five shares each, the price of which was never paid by them; and that he advertised that said Bank was organized, he being tbe cashier, and the other corporators, directors, &c., and it is alleged that they held said offices and conducted the Bank without authority of law.
3. That said Simonton made a last will and testament in which he devised and bequeathed all his estate to his wife, the defendant, and appointed her sole executrix, who has taken possession of all the assets of said Bank, and continues to usurp the authority exercised by her testator. Demand for judgment that the charter be vacated, &c.
Judgment for plaintiff. Appeal by defendants.
Messrs. Shipp & Bailey for plaintiff .
Messrs. Jones & Johnston, R. F. Armfield, M. L. McCorkle and G. N. Folk, for defendants .
This is an action in the nature of quo warranto seeking to vacate and annul a charter creating a corporation to be called the Bank of Statesville. Some of the defendants disclaimed being stockholders or officers of the corporation. The others submitted to a judgment by default. Pending the proceedings, Patterson and others claiming to be judgment creditors of the Bank, applied to be allowed to interplead on behalf of their several interests. The Judge refused to allow them to do so on the ground that by the law he had no authority.
We do not know what construction he put on sections 61 and 65 of C. C. P. It seems to us that these sections gave the Judge ample power to enable those persons claiming to be creditors to become parties. They claimed interests in the controversy adverse to the plaintiff, and even if a complete determination of the controversy could be had without their presence, justice required that it should not be made to their prejudice. On this ground we should remand the action to allow them to become parties, if on other grounds our opinion was not against the plaintiff, so that they have all that if parties they could have claimed in this action.
The object of this action is to vacate and annul the charter granted to the Bank of Statesville, by the Act of Assembly of 1870, and several grounds are alleged in support of the demand for that judgment.
1. There is no doubt that the charter of a public corporation may be declared forfeited by a non-user of its corporate franchises, for they are granted for the public good, and this is more especially true when they partake, in any degree as they generally do, of the nature of a monopoly. A Bank which issues bills for circulation as money, may be regarded as a public corporation; but a Bank, which, beyond a power to contract in its corporate name, has no powers beyond those which every other person possesses, must be deemed a private corporation. And it may be considered doubtful whether merely by reason of an omission to use its franchises which are given only for its private...
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