Buncombe County v. Hood, 202 N.C. 792 (1932)

June 15, 1932 · Supreme Court of North Carolina

202 N.C. 792

BUNCOMBE COUNTY et al. v. GURNEY P. HOOD, Commissioner of Banks, and UNITED STATES GUARANTEE COMPANY.

(Filed 15 June, 1932.)

1. Banks and Banking H d — Claim against receiver of insolvent bank must be filed and refused before institution of action thereon.

The Commissioner of Banks is in the nature of a statutory receiver of an insolvent bank when he has taken over its assets for the purpose of liquidation, and it is' required that a depositor or claimant against the bank’s assets in his hands must file his claim with the Commissioner and afford him an' opportunity to pass thereon before bringing suit, and where the complaint fails to allege the filing of th'e claim with the Commissioner and his refusal thereof, it fails to state a cause of action against him, and his demurrer to the complaint is properly sustained.

' 3. Removal of Causes C l) — Complaint stated no cause of action against resident defendant and motion for removal of nonresident was properly allowed.

Where an action is brought against the resident Commissioner of Banks and a nonresident insurance company to recover the amount deposited by a county in a bank prior to its insolvency and to recover on the depository bond executed by the insurance company, and the complaint fails to state a cause of action against the Commissioner because 'of its failure to allege a filing of the claim with him and his refusal thereof, the Commissioner’s demurrer is properly sustained, and the motion of the nonresident defendant for removal to the Federal Court is properly allowed.

Appeal by plaintiffs from Sink, J., at January Term, 1932, of BuNcombe.

Affirmed.

• This action was begun in tbe General County Court of Buncombe County, on 14 September, 1931. After tbe complaint was filed, and in apt time, tbe defendant, United States Guarantee Company, filed its petition in said court for tbe removal of tbe action from said General County Court of Buncombe County to tbe District Court of tbe United States for tbe Western District of North Carolina, for trial.

Tbe action is to recover on a bond in tbe sum of $30,000. Tbe bond is dated 21 June, 1930. It was executed by tbe Central Bank and Trust Company of Asbeville, N. C., as principal, and tbe United States Guarantee Company, as surety, and is payable to Buncombe County. Tbe condition of tbe bond is tbat tbe Central Bank and Trust Company “shall faithfully keep, account for, and pay on legal demand all moneys deposited with it by. or on behalf of tbe said Buncombe County, and shall not suspend payment of any moneys so deposited.”

It is alleged in tbe complaint tbat on 20 November, 1930, tbe Central Bank and Trust Company closed its doors, and suspended payment to its depositors; tbat on said day, tbe plaintiff, Buncombe County, bad on deposit with said Central Bank and Trust Company, in 'the name of its treasurer, tbe sum of $2,991,402.62; and tbat since tbe closing of said Central Bank and Trust Company, tbe plaintiff, Buncombe County, has collected from certain securities held by it for its said deposit, tbe sum of $50,409.93, leaving tbe amount now due said plaintiff, on account of said deposit, tbe sum of $2,940,992.69.

Prior to tbe commencement of this action, tbe defendant, Gurney P. Hood, Commissioner of Banks of tbe State of North Carolina, took into bis possession all tbe assets of tbe Central Bank and Trust Company, on band at tbe date tbe said company closed its doors and ceased to do business. Tbe said defendant is now engaged in tbe liquidation of the Central Bank and Trust Company, as he is authorized and directed to do by chapter 113, Public Laws of North Carolina, 1927. It is not alleged in the complaint that prior to the commencement of this action, the plaintiffs presented their claim against the Central Bank and Trust Company, on account of said deposit, to the defendant, Gurney P. Hood, Commissioner of Banks, and that said defendant, after considering' said claim, rejected it. The said defendant in his answer to the complaint admitted all the allegations therein, and in his further answer, in support of his prayer that the action be dismissed as to him, alleged that the action was improvidently begun by the plaintiffs, for that prior to its commencement, plaintiffs had not complied with the provisions of chapter 113, Public Laws of North Carolina, 1927. N. 0. Code of 1931, sec. 218(c), subsections (10) and (11).

The plaintiff, Buncombe County, is a body politic, incorporated under the laws of the State of North Carolina, and as such it may sue and be sued; its coplaintiffs are the treasurer of Buncombe County, and the board of financial control of said county. All of the plaintiffs are citizens of the State of North Carolina.

The defendant, Gurney P. Hood, Commissioner of Banks, is a citizen of the State of North Carolina, and as such he may sue or be sued in his official capacity; his codefendant, United States Guarantee Company, is a corporation organized under the laws of the State of New York, and duly licensed to do business in the State of North Carolina. The said defendant is not, and never has been a citizen of the State of North Carolina.

The action was heard by the judge of the Superior Court of Buncombe County, on the appeal of the defendant, United States Guarantee Company, from the order of the judge of the General County Court of said county, denying its petition for the removal of the action from said County Court to the District Court of the United States for the Western District of North Carolina, for trial.

From judgment reversing the order of the judge of the General County Court, and ordering the removal of the action in accordance with the petition of the defendant, United States Guarantee Company, the plaintiffs appealed to the Supreme Court.

Jones & Ward, and Clinton K. Hughes for plaintiffs.

John Izard and, Harkins, Van Winkle & Walton for defendant.

CoNNOR, J.

Plaintiffs cannot maintain this action against the resident defendant, Gurney P. Hood, Commissioner of Banks, for the reason that it is not alleged in the complaint that prior to the commencement of tbe action, plaintiffs presented tbeir claim against tbe Central Bank and Trust Company, to said defendant, and that said defendant rejected said claim.

No action or suit to recover on a claim against an insolvent banking corporation, organized under tbe laws of tbis State, can be maintained against tbe Commissioner of Banks, where said Commissioner bas taken into bis possession tbe assets of sucb corporation, and is engaged in its liquidation, as be is authorized and directed to do by chapter 113, Public Laws of North Carolina, 192? (N. C. Code of 1931, sec. 218(c), until sucb claim bas first been presented to said Commissioner and rejected by him. Tbe statutory provision to tbis effect is in accord with tbe decision of tbis Court in Crutchfield v. Hunter, 138 N. C., 54, 50 S. E., 557. In that case it was held that where a bank failed, and a receiver was appointed at tbe instance of a creditor in an action brought in behalf of himself and all other creditors, tbe plaintiff, a depositor of tbe insolvent bank, cannot maintain an action against tbe receiver to recover bis deposit. Plaintiff’s remedy was to file a petition in tbe original cause. Tbe principle on which tbe appeal in that case was decided is approved in Black v. Power Co., 158 N. C., 468, 74 S. E., 468. In that case it is said that tbe statute regulating tbe appointment of receivers of insolvent corporations, clearly contemplates tbe settlement of all questions involving claims against tbe corporation in one action, and that while tbe statute does not withdraw from a court of equity tbe power to permit a separate action to be prosecuted, tbis should not be done until tbe receiver bas at least bad tbe opportunity to pass on tbe claim. Where tbe Commissioner of Banks bas taken into bis possession tbe assets of an insolvent banking corporation, organized under tbe laws of tbis State, and' is engaged in tbe liquidation of said corporation, under tbe provisions of chapter 113, Public Laws, 192?, bis relationship to tbe corporation, and to its debtors and creditors, with respect to its assets, is that of a receiver. N. C. Code of 1931, sec. 218(e).

As no cause of action is alleged in tbe complaint on which tbe plaintiffs can recover jointly of the resident and of tbe nonresident defendant, tbe nonresident defendant bas tbe right under tbe act of Congress, to remove tbe action from tbe State Court to tbe District Court of tbe United States for trial. Simmons v. Ins. Co., 196 N. C., 667, 146 S. E., 569. There is no error in the judgment ordering tbe removal of tbe action in accordance with tbe petition of tbe defendant, United States Guarantee Company. Tbe judgment is

Affirmed.