Worth v. Piedmont Bank Of Morganton. Appeal Of Walton

• Decision Date: 23 December 1897
• Citation: 121 N.C. 343,28 S.E. 488
• Court: North Carolina Supreme Court
• Parties: WORTH, State Treasurer, v. PIEDMONT BANK OF MORGANTON. Appeal of WALTON.

28 S.E. 488

121 N.C. 343

WORTH, State Treasurer,

v.PIEDMONT BANK OF MORGANTON. Appeal of WALTON.

Supreme Court of North Carolina.

Dec. 23, 1897.

Banks and Banking—Insolvency—Receivers— Action for Appointment — Priority of Receivership—How Determined—Contempt.

1. Acts 1891, c. 155, as amended by Acts 1893, c. 478, requires the state treasurer to appoint some one to examine and report on the condition of the state banks, and, if it appears that a bank is insolvent, or in immediate danger of becoming so, the treasurer is to institute proceedings in the superior court of Wake county for winding up the bank and appointing a receiver. Held, that an application by the treasurer for the appointment of a receiver can be made to the resident judge, or the judge holding the courts by assignment or by exchange, of the judicial district in which Wake county is situated.

2. It can made no difference in the treasurer's right to make, such application that the examiner did not make his report until the insolvency of the bank was publicly known.

3. Said acts do not give the treasurer exclusive right to institute proceedings for a receiver, so as to take away the right of a creditor of the bank to sue for that purpose in the superior court of the county where the bank is situated.

4. Where authorized proceedings for the appointment of a receiver are begun in two different courts, and a different receiver is appointed in each case, in determining the priority as between the receivers, the court will take notice of the fractions of a day.

5. Priority as between permanent receivers appointed in separate proceedings by different courts having equal authority to make appointments is determined by reference to the date of the appointment of the temporary receivers.

6. Where two receivers are respectively appointed by separate courts having equal jurisdiction, and one of them takes possession of the property in suit under order of court, and refuses on demand to deliver up possession to the receiver who is afterwards declared to be the one legally appointed, he is not punishable for contempt, unless he continues to hold after such decision.

Appeal from superior court, Wake county; Robinson, Judge.

Action by William H. Worth, as treasurer of the state, against the Piedmont Bank of Morganton, for the appointment of a receiver, and for winding up the affairs of the bank. From an order appointing Andrew D. Cowles permanent receiver, and holding that the appointment of W. L. Walton as temporary receiver in an action against the bank in another county, by T. M. Webb and others, was subsequent to the appointment of Cowles as temporary receiver, W. L Walton appeals. Affirmed.

E. J. Justice, for appellant.

F. H. Busbee, for appellee.

CLARK, J. Ordinarily, the motion for a receiver must be made before the resident judge of the district, or one assigned to the district, or holding the courts thereof by exchange, at the option of the mover (Code, §§ 336, 379; Corbin v. Berry, 83 N. C. 27); or at most in analogy to the granting of restraining orders, if the motion for a temporary receiver is granted by any other judge than one of those just named, the order must be made returnable before one of such judges (Galbreath v. Everett, 84 N. C. 546; Hamilton v. Icard, 112 N. C. 589, 17 S. E. 519). Acts 1891, c. 155, amended by Acts 1893, c. 478, makes it the duty of the state treasurer to appoint some one to make examination of the condition of the state banks, banking institutions, and bankers referred to in that statute, and report thereon, and "if on such report it shall appear to the state treasurer that any bank, banking institution or banker is insolvent or in imminent danger of insolvency, or is guilty of fraud, fraudulent practices or concealments, the said treasurer shall institute proceedings in the superior court of Wake county for the purpose of winding up and settling the affairs of the said bank, banking institution or banker, and for the appointment of a receiver thereof according to law." Under this act, an application by the treasurer for the appointment of a receiver could be made to the resident judge, or the judge holding the courts, by assignment or...