Worth v. Piedmont Bank of Morganton

28 S.E. 488 | N.C. | 1897

Ordinarily, the motion for a receiver must be made (347) 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, secs. 379, 336; 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. Laws 1891, ch. 55, as amended by Laws 1893, ch. 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 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 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., nor which takes away the right of any creditor, by a general creditor's bill, to begin an action for that purpose. The only difference (348) 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 invalidate proceedings already taken by creditors for that purpose under the general law.

The proceedings by Webb and other creditors, and that by the Treasurer, were equally authorized by statute. The only inquiry, therefore, is as to which obtained the priority, for only one proceeding for the purpose can be tolerated, and in determining the question of priority in such cases the court will take notice of fractions of a day. People v. Bank, 35 How. Pr., 428; s. c., 53 Barb., 412.

The summons in the proceeding instituted by Worth, Treasurer, was issued 2 December, but a few hours later than the summon issued on the same day in the proceeding begun by Webb and others. On the other hand, the order appointing a temporary receiver was made by Judge Robinson in Treasurer Worth's suit at 9:45 a. m., 3 December, and at 6:45 p. m. the same dayJudge Hoke appointed a temporary receiver in the suit brought by Webb and others. The permanent receiver was appointed in the Treasurer's suit on 11 December, a few hours later than the appointment on the same day of the permanent receiver by Judge Greene in Webb's suit. The temporary and permanent receiver appointed in the Webb suit took and still holds possession of the assets.

The test of jurisdiction in such cases is not the first issuing of the summons, nor the first preparation and verification of the papers, which are the acts of the parties, nor which receiver first took possession (349) (People v. Bank, supra), since that has no effect, unless legally authorized (which it cannot be if a prior order has been made appointing another), but which court is first "seized of jurisdiction" by making an order upon legal proceedings exhibited before it. "That court which first takes cognizance of the controversy is entitled to retain jurisdiction until the end of the litigation, to the exclusion of all interference by other courts of concurrent jurisdiction." Gluke Becker on Rec., sec. 430. "Priority as between receivers is determined by reference to the date of appointment, since the court will not permit both to act." High on Rec., sec. 162. "The title of the receiver dated back to the time of granting the order, even though preliminary conditions must be performed, and he remains out of possession pending such performance." Beach on Rec., sec. 200; Wilson v. Allen, 6 Barb. (N. Y.), 542; Storm v.Waddell, 2 Sandf., 494. The first order was made by Judge Robinson appointing a temporary receiver, and he retains the jurisdiction then acquired. Childs v. Martin, 69 N.C. 126; Young v. Rollins, 85 N.C. 485. Walton, however, was properly not punished for contempt. As was said inPeople v. Bank, supra, "he appears to have acted in good faith, and had the authority of an order of the court, which he was probably entitled to regard as valid until pronounced otherwise on a question of priority by a competent tribunal." That decision being now pronounced, it will be his duty to obey it and deliver over the assets to the receiver appointed by the court which first acquired jurisdiction — i. e., Cowles.

The order of Judge Robinson of 11 December, 1897, is in all respects

Affirmed.

Upon the filing of the opinion in the above case, the plaintiff moved for judgment in this Court directing the respondent, W. E. Walton, to deliver to Andrew D. Cowles, receiver, the assets of the defendant bank, real and personal, under the decision of the court, and for (350) costs, and in default of the delivery of the said assets to said Cowles by respondent, that an execution issue to the proper officer to place the said Andrew D. Cowles, receiver, in possession of said assets.

Judgment was rendered accordingly.

Cited: Pettigrew v. McCoin, 165 N.C. 477.