Worth v. Piedmont Bank of Morganton
| Decision Date | 23 December 1897 |
| Citation | 28 S.E. 488,121 N.C. 343 |
| Parties | WORTH, State Treasurer, v. PIEDMONT BANK OF MORGANTON. |
| Court | North Carolina Supreme Court |
Appeal of WALTON.
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 as 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.
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.
E. J Justice, for appellant.
F. H Busbee, for appellee.
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 exchange, of the judicial district in which Wake county is situated. It can make no difference in the treasurer's right to make the application that the examiner did not make such report till the insolvency of the bank was publicly known. If the report had been made earlier, it would have been simply the treasurer's duty to have moved earlier. But we see nothing in the act which, by a just construction, gives the treasurer the exclusive right to institute proceedings for a receiver, etc., or which takes away the right of any creditor by a general creditors' bill to begin an action for that purpose. The only difference is that the treasurer, by means of his examiner, may have earlier information than others, and it is made his official duty to take appropriate steps to wind up the bank whenever, by the examiner's report, it appears to him that "it is insolvent, or in imminent danger of insolvency, or is guilty of fraud, fraudulent practices, or concealments"; but that does not specify that, if he moves, it shall...
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