Crutchfield v. Hunter, 138 N.C. 54 (1905)

April 11, 1905 · Supreme Court of North Carolina
138 N.C. 54
CRUTCHFIELD v. HUNTER, RECEIVER

CRUTCHFIELD v. HUNTER, RECEIVER.

(Filed April 11, 1905).

Banks — Receiver—Creditor s Suit.

Where a bank failed and a receiver was appointed' at the instance of a creditor in an action brought in behalf of himself and all other creditors, the plaintiff cannot maintain an action against the receiver to recover a deposit, but his remedy is to ñle a petition in the original cause.

ActioN by George P. Crutchfield against T. A. Hunter, Receiver of the Bank of Guilford, heard by Judge T. J. Shaw and a jury, at the Special January. Term, 1905, of the Superior Court of Guilpoed County.

This was an action commenced on the 4th day of December 1903 to recover a debt. The plaintiff submitted to a non-suit upon an intimation of the court that the debt was barred by the statute of limitations and appealed.

E. J. Justice for the plaintiff.

Scales, Taylor & Scales and J. N. Wilson for the defendant.

Brown, J.

The plaintiff was a depositor with the Bank of Guilford, and on the 31st day of July, 1898, deposited with it $290 and took a receipt from the cashier therefor on one of the deposit slips of the bank. He has not been given credit for this deposit on his account with the bank and never has been credited with it, or had it paid to him in any *55settlement with the bank or in any other way. The bank failed, and on the third day of January 1899 a receiver was appointed to take charge of its assets, at the instance of a creditor in an action brought on behalf of himself and all other creditors.

This action cannot be maintained. The remedy of the plaintiff is to file his petition in the original cause wherein a receiver was appointed. Upon the hearing of his petition and the answer of the receiver thereto, the pleas raised will be adjudicated. The case of Dobson v. Simonton, 93 N. C., 268 is “on all fours” and the opinion presents a full discussion of the subject.

Let this action be dismissed without prejudice.

Dismissed.