In Re the Liquidation of the Citizens Bank

Connor, J. The statute providing for the enforcement of the statutory liability of a stockholder of a bank organized under the laws of this State, C. S., 219 (a), and in liquidation by the Commissioner of Banks under statutory authority because of its insolvency, C. S., 218 (c), is as follows: “After the expiration of thirty days from the date of the filing of the notice of the taking possession of any bank in the office of the clerk of the Superior Court, the Commissioner of Banks may levy an assessment equal to the stock liability of each stockholder in the bank, and shall file a copy of such levy in the office of the clerk of the Superior Court, which shall be recorded and indexed as judgments, and shall have the force and effect of a judgment of the Superior Courts of this State; and the same shall become due and payable immediately, and if not paid, execution may issue at the instance of the Commissioner of Banks against the stockholder delinquent, and actions on said assessments may be instituted against any nonresident stockholder in the same manner as other actions against nonresidents of the State. Any stockholder may appeal to the Superior Court from the levy of an assessment; the issue raised by the appeal may be determined as in other actions in the Superior Court.” Subsection 13 of section 218 (c), Consolidated Statutes of North Carolina, as amended by chapter 113, Public Laws of North Carolina, 1927. No time is fixed by the statute for the giving of notice of an appeal from an assessment by a stockholder or other person against whom the assessment has been levied and duly docketed. It is, however, expressly provided by the statute that when an assessment has been levied and duly docketed, as required by the statute, such docketed assessment “shall have the force and effect of a judgment of the Superior Courts of this State.” It follows from this provision that notice of appeal must be given within ten days from the date of the docketing of the assessment in the office of the clerk of the Superior Court of the county in which the bank is located. C. S., 641. While the statute does not pro *219 vide for notice to the stockholders prior to the levying of the assessment, such notice is presumed. Corp. Com. v. Murphey, 197 N. C., 42, 147 S. E., 667. Each stockholder has constructive notice, at least, of the levying and docketing of the assessment, and if he wishes to avail himself of his statutory right of appeal from the assessment, he must give notice of such appeal within ten days of the docketing of the assessment in the office of the clerk of the Superior Court of the county in which the bank is located. Otherwise, he has lost his right to appeal, and the assessment is final and conclusive. When a stockholder or other person against whom an assessment has been levied and docketed, as authorized by the statute, has failed to give notice of an appeal within ten days from the date of the docketing, and has therefore lost his right to appeal, he may apply to the judge of the Superior Court for a writ of certiorari. In a proper case he will be granted the writ, and thereby be assured a hearing in the Superior Court on his contention that the assessment was illegal. In Oliver’s appeal in In re Bank, 208 N. C., 65, 179 S. E., 24, the judgment dismissing the appeal was affirmed. In that case we said: “That the appeal should be taken within a reasonable time, is all that the appellant could claim. We agree with the trial court that a delay of nineteen or twenty months is too long.” Nothing was said in the opinion in that case which is inconsistent with the ground on which the judgment in the instant case is affirmed. Whether or not the appeal in the instant case was taken within a reasonable time is immaterial on this record. We agree with the trial court that the appeal was not taken within the proper time — that is, within ten days from the date of the docketing of the assessment. Affirmed. Devin, J., took no part in the consideration or decision of this case.