Tbe defendant excepted to tbe instruction given, and in tbe argument here she contended that neither tbe justice of tbe peace nor tbe Superior Court on appeal bad jurisdiction of tbe action. Tbe jurisdiction of tbe Superior Court was derivative; it could not proceed to judgment, therefore, unless tbe justice bad original jurisdiction. Drainage Comrs. v. Sparks, 179 N. C., 581; Sewing Machine Co. v. Berger, 181 N. C., 241, 248; Hall v. Artis, 186 N. C., 105. Tbe plaintiff says the question of jurisdiction was not raised in tbe trial court and should not now be considered; but it has been held that a motion to dismiss for want of jurisdiction may be made for tbe first time in tbe Supreme Court. Tillery v. Benefit Society, 165 N. C., 262; McDonald v. MacArthur, 154 N. C., 122.
A statute enacted in 1897 provided that, tbe stockholders of every bank or banking association chartered in tbis State should be individually responsible equally and ratably for all contracts, debts, and agreements of such association to tbe extent of tbe par value of their stock. Tbis statute as amended is C. S., 237. It was construed in Smathers v. Bank, 135 N. C., 410, tbe Court saying: “In winding up tbe affairs of an insolvent corporation it is best that, as nearly as may be, tbe court having original jurisdiction bring all parties interested in tbe final decree before it, and to tbe end that their right and equities be adjusted and administered. Tbe usual and better practice is to have an assessment upon tbe stockholders made by tbe court, upon an ascertainment from tbe report of tbe receiver and notice issued to each stockholder to show cause why such assessment should not be enforced. Tbe act of 1891 (chapter 155), in regard to winding up tbe affairs of insolvent banks, as amended by Laws 1899, ch. 164, transferring to tbe Corporation Commission tbe power and duties- conferred upon tbe Treasurer, contemplates tbis procedure. While, as we have seen, tbe receiver may recover tbe amount due from tbe stockholder, be should be permitted to do so only upon its appearing that there is a deficit in tbe other assets of tbe bank, and be should recover only such amount as may be necessary to cover such deficit. It is within tbe power of tbe court to make such assessment. Langston v. Upton, 91 U. S., 56; *364 Hawkins v. Glenn, 131 U. S., 319. It may be that it would, be wise to confer upon the Corporation Commission, having charge of the management of banks, the power to make such assessments after the manner provided in the National Banking Act, by which the comptroller does so.”
The act of 1911, C. S., 239, is in line with this opinion: “When a banking corporation chartered by the State becomes insolvent, and it appears to the court with jurisdiction of the cause that the bank’s assets are insufficient to discharge the obligations, and that it will be necessary to assess the shares of stock issued by such bank as provided by law, an accounting may be had in the original action and the shareholders made parties defendant thereto. W'hen upon the facts found it is adjudged that such deficiency exists and the amount thereof is determined, the court shall assess the stock of the corporation equally and ratably, and not in excess of the limitation provided by statute, and adjudge the holders indebted to'the receiver of the corporation in proportion to the amount of stock therein credited to them upon the books of the bank within thirty days next preceding its suspension. The certificates of stock are thereafter evidence as against all stockholders of an indebtedness due the receiver equivalent to the assessment thereon, and the judgment shall establish the amount of the deficiency, the necessity of the assessment, the names of the shareholders, and their several liabilities as such.”'
It will be noted that provision is made for an accounting in the original action,, to which the shareholders may be made parties. There should be therein a finding and a judgment as to the fact and as to the amount of the deficiency; and then the court should assess the stock of the corporation equally and ratably and determine and adjudge the amount of each holder’s indebtedness. The statute contemplates a uniform rule by which the assessments shall be made; and the necessity of such a rule is exemplified by the facts in the present record. There is evidence from which it may be inferred that the receiver made the assessment in this case pursuant to the judge’s order; but it was erroneous in amount and there is no evidence of a judgment in the Superior Court as to the liability of the defendant or any of the other stockholders. The liability of all should have been adjudged in the original action.
The receiver brought a separate action in a justice’s court to recover an amount which had not been determined by the Superior Court. We think that the individual liability of the stockholders should be adjudged in the suit pending in the Superior Court, and that the present action should be dismissed. -
Action dismissed.