Kruger v. Bank of Commerce, 31 S.E. 270

Kruger v. Bank of Commerce

31 S.E. 270 | N.C. | 1898

The complaint was for an unliquidated account and duly verified. No answer having been filed, the plaintiff was entitled to judgment by default and inquiry (The Code, sec. 386), and from its refusal an appeal lay. Griffin v. Light Co., 111 N.C. 434; Curran v. Kerchner,117 N.C. 264. If the defendant had appeared and asked for time to file answer, its allowance would have been in the unreviewable discretion of the Court. The Code, sec. 274; Mallard v. Patterson, 108 N.C. 255. Though such extension of time is a practice not to be encouraged.Dempsey v. Rhodes, 93 N.C. 120; Griffin v. Light Co., supra. But there was no appearance, and the affidavit of one claiming to be one of the receivers for the defendant corporation, appointed by the Court in New York, averring their appointment was entitled to no consideration, as he did not come in and make himself a party to the action. The affidavit is not even accompanied by a certified copy of the alleged judgment of dissolution and appointment of receivers. It was in no sense an answer, and the plaintiff is entitled to have judgment by default and inquiry entered here, as was done in Alspaugh v. Winstead, 79 (18) N.C. 526; The Code, sec. 957.

Had the foreign receiver come in and made himself a party to the action and put his affidavit in the form of a verified answer, it would not have defeated the plaintiff's right to judgment, for it did not negative the plaintiff's grounds of recovery, but set up the appointment of receivers for the defendant corporation at its residence in New York. The court here having acquired jurisdiction by the levy of the attachment *42 upon the defendant's realty in this State, the plaintiff's lien cannot be divested by the appointment of receivers in another state. Moselyv. Burroughs, 52 Tex. 396[52 Tex. 396]. The appointment of receivers in the state of defendant's residence has no extra territorial effect (Boothe v. Clark, 17 Howard, U.S., 322, 338), though the courts of other states as a matter of comity may permit such receivers to bring actions in their courts where this will not militate to the injury of their own citizens. 6 Thompson Corp., secs. 7334, 7344; Hunt v. Columbian Ins. Co.,55 Me. 290; Beach on Receivers, sec. 685. In Ins. Co. v. Bank, 68 Ill. 348, it is said: "Where real estate in one state belonging to a corporation which has its chief place of business in another state is attached in the courts of the state where the land lies, a decree of the court of the home state of the corporation appointing a receiver and restraining it from further transacting business affords no ground for quashing a writ of attachment, as the corporation is liable to suit in the state where the property is situated to subject it to the demands of creditors." The decree in New York declaring insolvency and appointing receivers has no effect upon the title to real property in another state. 6 Thompson, supra, sec. 7343, and cases there cited. If titles could be affected (19) by decisions of the courts of another state, of what avail would be our registration laws?

This sums up the doctrine as almost universally recognized (Day v.Telegraph Co., 66 Md. 354), and especially is this so in states like ours, in which by statute the existence of corporations is continued for the benefit of creditors and winding up affairs, for a prescribed time (The Code, sec. 667) after the charter has expired or been declared forfeited.Life Asso. v. Fossett, 102 Ill. 315.

Error.

Cited: Abbott v. Hancock, post, 90; Investment Co. v. Kelly, post, 389;Ins. Co. v. Edwards, 124 N.C. 121; Person v. Leary, 126 N.C. 505; Bestv. Dunn, ibid, 561; Pearson v. Leary, 127 N.C. 115; Hall v. Hall,131 N.C. 186; Timber Co. v. Butler, 134 N.C. 52; Holshouserv. Copper Co., 138 N.C. 255; Dunn v. Marks, 141 N.C. 233. *43