McCleese v. Eastern Bank & Trust Co., 205 N.C. 345 (1933)

Nov. 1, 1933 · Supreme Court of North Carolina

205 N.C. 345

MANSON McCLEESE v. EASTERN BANK AND TRUST COMPANY.

(Filed 1 November, 1933.)

T. Appeal and Error B d — Where defendant does not appeal from judgment for plaintiff, plaintiff’s right to maintain action is not presented.

Where defendant appeals from an order overruling its demurrer to plaintiff’s complaint, and the Supreme Court dismisses the appeal because the question of whether plaintiff could maintain the action has become moot, and thereafter judgment is rendered in the trial court in plaintiff’s favor, from which judgment defendant does not appeal, on plaintiff’s appeal from that part of the judgment directing that security filed by defendant in the cause to secure the payment of any judgment plaintiff should recover should be returned to defendant receiver for application as a general asset, the only question presented on the appeal is the correctness of the order disposing of the security filed by defendant, and the question of plaintiff’s right to maintain the action is not presented for review.

2. Judgments O a — Where judgment for plaintiff is allowed to stand, bond filed by defendant should be applied to judgment.

Where a judgment in plaintiff’s favor is allowed to stand and is not appealed from, plaintiff is entitled to have a State bond filed by defendant to prevent receivership and to secure payment of any judgment which plaintiff should recover, applied to his judgment, and an order that the bond should be returned to defendant’s receiver, later independently appointed, as a general asset, is erroneous.

Appeal by plaintiff from Grady, J., at Spring Term, 1933, of Pamlico.

Modified and affirmed.

Prior to 8 August, 1930, the Eastern Bank and Trust Company, a banking corporation organized and doing business under the laws of this State, at Bayboro, in Pamlico County, and elsewhere, had closed its doors, and was about to enter into liquidation. At said date, about 90 per cent of its depositors entered into an agreement with the said Eastern Bank and Trust Company, by which they agreed to postpone until 20 December, 1932, presentation of checks for payment, and the said Bank and Trust Company agreed to open its doors and to resume business. This agreement was approved by the North Carolina Corporation Commission and by the Chief State Bank Examiner. Pursuant to this agreement, the said Eastern Bank and Trust Company opened its doors and resumed business as a banking corporation.

On 8 August, 1930, the plaintiff had on deposit with the Eastern Bank and Trust Company, subject to his check, the sum of $853.77. He was then under the age of twenty-one years. The depositors’ agreement was signed by the plaintiff, and also on his behalf by his guardian. The agreement on behalf of the plaintiff was not authorized or approved by the court, which had appointed the guardian of the plaintiff. The plaintiff became of the age of twenty-one years prior to 23 September, 1932. At said date, the plaintiff presented to the Eastern Bank and Trust Company his check for $853.77, and demanded its payment. Payment was refused because plaintiff had signed the depositors’ agreement, and thereby agreed not to present his check and demand payment thereof until 20 December, 1932. The plaintiff then notified the said Bank and Trust Company that he repudiated the sdid agreement on the ground that be was under tbe age of twenty-one years wben be signed tbe agreement, and on tbe further ground that bis guardian was without authority to sign tbe agreement on bis behalf. This action was begun by the plaintiff on 23 September, 1932, to recover of said Bank and Trust Company tbe sum of $853.77.

On 7 November, 1932, tbe plaintiff moved that a receiver be appointed by tbe court for tbe defendant, tbe Eastern Bank and Trust Company. This motion was beard and denied upon tbe agreement of tbe defendant to file a bond in tbe action conditioned for tbe payment by tbe defendant of such judgment as tbe plaintiff should recover in tbe action. This bond was filed by the defendant on 9 November, 1932. Thereafter with tbe approval of tbe court, tbe bond was withdrawn and canceled, and tbe defendant deposited with tbe clerk of tbe Superior Court of Pamlico County, a bond of the State of North Carolina in tbe sum of $1,000, in lieu of said bond. Subsequent to tbe deposit of said State bond, tbe Eastern Bank and Trust Company again closed its doors. Tbe said Bank and Trust Company is now in process of liquidation, because of its insolvency, under tbe supervision of tbe defendant, Gurney P. Iiood, Commissioner of Banks.

Tbe action was called for trial at Spring Term, 1933, of tbe Superior Court of Pamlico County. On tbe facts found by tbe judge, it was ordered and adjudged that plaintiff recover of tbe defendants tbe sum of $853.77, with interest from 23 September, 1932, and-tbe costs of tbe action; it was further ordered that tbe clerk of tbe court deliver to the defendant, Gurney P. Iiood, Commissioner of Banks, or bis liquidating agent, tbe North Carolina bond, now in bis possession, to be held and disposed of as an asset of tbe Eastern Bank and Trust Company, for tbe payment of its general creditors. Tbe plaintiff excepted to tbe judgment and appealed to tbe Supreme Court.

W. B. B. Guión, H. P. Whitehurst and John A. Guión for plaintiff.

Warren & Warren for defendants.

OoNnoe, J.

Tbe defendants’ appeal from tbe order overruling tbe demurrer to tbe complaint filed by tbe defendants in this action, was dismissed by this Court on tbe ground that tbe question of law presented by tbe demurrer bad become moot and academic, because under tbe depositors’ agreement which the plaintiff bad signed before be became twenty-one years of age, tbe plaintiff bad tbe right, in any event, to demand payment of his check on tbe defendant, Eastern Bank and Trust Company after 20 December, 1932. See McCleese v. Trust Co., 204 N. C., 355, 168 S. E., 210. Tbe defendants did not except to or appeal from tbe judgment at Spring Term, 1933. Tbe right of the plaintiff to maintain tliis action, wbieb was begun on 23 September, 1932, is not presented by this appeal.

The only question presented by plaintiff’s appeal is whether there was error in the judgment directing the clerk of the court to deliver to the defendants the North Carolina bond in his possession, to be held and disposed of by the defendant, Gurney P. Hood, Commissioner of Eanks, as an asset of the defendant, Eastern Bank and Trust Company, for the payment of its general creditors. On the facts found by the judge, the plaintiff has a lien on the bond for the payment of his judgment in this action. It was error to order the bond delivered to the defendants as a general asset of the Eastern Bank and Trust Company. The plaintiff is entitled to an order for the enforcement of his lien on the bond. The judgment should be modified to that end.

Modified and affirmed.