North Carolina Corp. Commission v. United Commercial Bank

ScheNgk, J. The sole question involved on this appeal is: Was Judge Stevens without jurisdiction or authority to pass upon the question presented by the last order of Judge Harris, namely, the validity of *51 tbe claim of tbe intervening petitioner, tbe University of North Carolina, to tbe funds standing to tbe credit of tbe dividend account of tbe receivership. "We think, and so bold, tbe answer to be in tbe negative. While it is true, as was said in In re Adams, 218 N. C., 379, 11 S. E. (2d), 163, “It is an established rule in this jurisdiction that one Superior Court judge has no power to overrule the.judgment or reverse tbe findings of fact of another judge of tbe Superior Court previously made in tbe cause, except in certain well defined eases which have no application here. Roulhac v. Brown, 87 N. C., 1; Henry v. Hilliard, 120 N. C., 479, 27 S. E., 130; Davis v. Land Bank, 217 N. C., 145. No appeal lies from one Superior Court judge to another. Wellons v. Lassiter, 200 N. C., 474, 157 S. E., 434; S. v. Lea, 203 N C., 316, 166 S. E., 292; Dail v. Hawkins, 211 N. C., 283, 189 S. E., 774,” it is written in Temple v. Telegraph Co., 205 N. C., 441, 171 S. E., 630, “It is likewise settled by tbe decisions that tbe principle of res judicata does not extend to ordinary motions incidental to tbe progress of a cause, but only to those involving substantial rights. Revis v. Ramsey, 202 N. C., 815, 164 S. E., 358; Townsend v. Williams, 117 N. C., 330, 23 S. E., 461; Allison v. Whittier, 101 N. C., 490, 8 S. E., 338; Mabry v. Henry, 83 N. C., 298.” This is a controversy between tbe petitioner, tbe University of North Carolina, and tbe respondent, J. K. Beid, sheriff of Washington County. No one else has any financial or material interest therein. Tbe University of North Carolina was not made a party to tbe orders of Judge Harris, and was not given notice of tbe applications therefor. Such being tbe case, tbe doctrine of res judicata bad no binding effect upon it. “ ‘Ordinarily, tbe rule is that only parties and privies are bound by a judgment. Bennett v. Holmes, 18 N. C., 486; Simpson v. Cureton, 97 N. C., 112; Hines v. Moye, 125 N. C., 8. No estoppel is created by a judgment against one not a party or privy to tbe record by participation in tbe trial of tbe action. Falls v. Gamble, 66 N. C., 455; LeRoy v. Steamboat Co., 165 N. C., 109.’ Meacham v. Larus & Brothers Co., 212 N. C., 646.” Rabil v. Farris, 213 N. C., 414, 196 S. E., 321. “Tbe Eeceiver is an officer of tbe Court and is amenable to its instruction in tbe performance of bis duties; and tbe custody of tbe receiver is tbe custody of tbe law. Simmons v. Allison, 118 N. C., 761; Pelletier v. Lumber Co., 123 N. C., 596; Greenleaf v. Land Co., 146 N. C., 505. Courts of equity have original power to appoint receivers and to make such orders and decrees with respect to tbe discharge of their trust as justice and equity may require. Skinner v. Maxwell, 66 N. C., 45; Lasley v. Scales, 179 N. C., 578.” Blades v. Hood, Comr. of Banks, 203 N. C., 56, 164 S. E., 828. We are of tbe opinion that the orders of Judge Harris were made incidental to tbe progress of tbe receivership, and were interlocutory, and *52 that the doctrine of res. judicaia for this reason had no application thereto, and for the further reason that the University of North Carolina, the real party in interest in this controversy, was not given notice thereof and was not made a party thereto, and that the funds involved, still being to the credit of the receiver, are still under the jurisdiction of the court, subject to be distributed or paid out as the court may direct. This cause is remanded that the controversy between the real parties in interest, the intervening petitioner, the University of North Carolina, and the respondent J. 3L Reid, sheriff of Washington County, may be heard and determined. The right or propriety of the appeal of the receiver presents a collateral question unnecessary to be answered on this appeal. Reversed.