Hood, Comr. of Banks v. . Holding

Adams, J. While of sound mind T. E. Holding purchased twenty-one shares of stock in the Bank of Wake, each of tbe par value of one hundred dollars. Several years afterwards (on 28 August, 1928) be was duly adjudged a lunatic and was committed to a hospital for tbe treatment and protection of tbe insane. Tbe Bank of Wake closed its doors on 18 December, 1931, and on 29 February, 1932, tbe Commissioner of Banks, having taken charge of tbe assets, docketed in tbe office of tbe clerk of tbe Superior Court of Wake County a judgment in tbe sum of $2,100 as an assessment on tbe twenty-one shares of stock. T. E. Holding died 7 October, 1932, and on 20 January, 1933, Harvey Holding-qualified as administrator of bis estate with the will annexed. Proof of tbe claim was filed with tbe administrator on 18 February, 1933, and was disapproved. Tbe administrator’s right to contest tbe claim is not denied. In tbe absence of statute an insane person who is not subject to tbe protection of a general or testamentary guardian may sue and be sued, although it is generally required that in such event be be represented at tbe bearing by a next friend or a guardian. Smith v. Smith, 106 N. C., 498; Abbott v. Hancock, 123 N. C., 99. Indeed, our statute provides that if a defendant in an action or special proceeding is non compos mentis be must defend by bis general or testamentary guardian if be has one within tbe State, and if be has none, by a guardian ad litem to be appointed by tbe court. C. S., 451. *454 When tie stock assessment was docketed in tie Superior Court T. E. Holding was insane and was 'not represented by a guardian general or testamentary, or by one appointed lite pendente. In wlat respect and to wlat extent was le affected, if at all, by tie judgment ? Tie banking law stipulates tliat at tie expiration of a specified period tie Commissioner of Banks may levy an assessment equal to tie stock liability of eacl stockholder in tie bank and shall file a copy of tie levy in tie office of tie clerk of tie Superior Court which, after being recorded and indexed, shall lave the force and effect of a judgment of tie Superior Court and shall be immediately due and payable. If tie judgment is not paid tie Commissioner of Banks may lave an execution issued against tie delinquent stockholder; but tie stockholder may appeal to tie Superior Court from tie levy of the assessment and may lave tic issue raised by tie appeal determined. Thereupon, tie trial judge may in his discretion grant relief upon such terms as he may fix. All sums collected under tie levy shall become available as general assets of tie bank, and tie amount remaining after liquidation shall be applied pro rata to tie amounts paid in by tie stockholders. Public Laws, 1921, clap. 113, sec. 1, 218(c) (13). In Corporation Commission v. Murphey, 197 N. C., 42, tie Court construed this statute and declared it to be valid. Tie statute, it was said, does not contravene tie due process clause or indeed any other clause of tie Federal or of the State Constitution; tie stockholder is not denied tie right of a hearing for tie reason that before execution may be issued he may appeal from the assessment to tie Superior Court of tie county in which the liquidation is pending and there litigate all matters, whether of law or of fact, relating to his liability on the assessment. His appeal stays execution until final judgment is rendered. It was concluded that by this procedure the stockholder is given full opportunity to be heard before his property can be appropriated and that the assessment is not a judgment in the sense that it cannot be. attacked. The opinion was written upon the assumption that stockholders are in the normal control of their faculties and not with reference to the contingency of “a human mind in ruins.” This becomes obvious by reference in the opinion to the stockholder’s right to petition the judge to relieve his property of the lien pending settlement of questions raised by the appeal and to the notice of liability with which the stockholder is affected by an adjudication that the bank has become insolvent and by the filing of a copy of the assessment in the office of the clerk. The present case does not rest on this assumption. T. E. Holding did not appeal from the assessment; when it was made he was without mental capacity; he was in a hospital for treatment; he had no guardian. ' *455 Tbe rule is substantially uniform that a judgment against an insane person not previously declared insane is not void but voidable and that it will generally be sustained when collaterally attached. Odom v. Riddick, 104 N. C., 515; Craddock v. Brinkley, 177 N. C., 125; Bank v. Duke, 187 N. C., 386; Clark v. Homes, 189 N. C., 703; Wadford v. Gillette, 193 N. C., 413. But in such an instance relief may be administered when sought as between the parties by motion in the cause, or by an independent action. If there is a mere semblance of service upon a person of nonsane mind and a judgment is obtained against him “contrary to the course and practice of the court” it may be vacated on the ground of irregularity. But a judgment given without service of original or other timely process and without appearance in person or by attorney is void, and may be so regarded whenever and wherever offered. Duffer v. Brunson, 188 N. C., 789; Condry v. Cheshire, 88 N. C., 375. In Corporation Commission v. Murphey, supra, it was held that an assessment cannot be made against a stockholder in an insolvent banking-corporation without notice to him or without an opportunity to be heard as to the validity of the assessment; and therein is pointed out the expediency of giving actual notice of a purpose to levy the assessments. If these safeguards are required for the protection of persons of sound mind, a fortiori are they essential to the protection of those who by reason of disordered mental condition are unable to protect themselves. As to the mode of service analogy may be found in the statutory, method of serving a summons. If the action is against a person judicially declared to be of unsound mind or incapable of conducting his own affairs for whom a committee or guardian has been appointed a copy of the summons must be delivered to the committee or guardian and to the defendant personally. O. S., 483(3). If the declared incompetent has no committee or guardian service of notice may be made upon him personally or the notice may be returned without actual service with the endorsement required by the statute when service cannot be made without the danger of injury to him; but in no event should final judgment be rendered against him without adequate notice to his committee, or to his general or testamentary guardian, or to a guardian ad litem duly appointed by the court. In this case T. E. Holding was not affected by constructive notice and of actual or personal notice upon him or his representative there is neither semblance nor color. Judgment Affirmed.