Hood Ex Rel. High Point Morris Plan Bank v. Burrus

Clabicson, J. The following questions involved in this appeal we do not think, oil the present state of, the record, it is necessary to pass on: “Is a stockholder in an industrial bank liable for an assessment on his stock when said nonassessable stock was owned prior to the passage of C. S., 225 (o), and the liabilities were contracted prior and subsequent to the said enactment? “Is a stockholder in an industrial bank subject to an assessment on his stock acquired after 4 March, 1925, which is the date of the passage of C. S., 225 (o), when his stock certificates contained a clause that said stock was nonassessable?” The question now involved: “When a stockholder in an insolvent bank appeals from an assessment levy and sets forth in Superior Court that three corporations had agreed to assume and pay all the indebtedness of the said bank, before insolvency, and relieve the stockholders of any liability, provided the said bank would assign all its assets to said corporations, which was done, is it error to overrule the defendant’s motion to make the said corporations parties to the action?” Under the facts and circumstances of this ease, we think so. N. C. Code 1931 (Michie), sec. 456, in part, is as follows: “All persons may be made defendants, jointly, severally, or in the alternative, who have, or claim an interest in the controversy adverse to the plaintiff, or who are necessary parties to a complete determination or settlement of the questions involved.” N. C. Practice and Procedure in Civil Cases, McIntosh, part of sec. 226, p. 210, in part is as follows: “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiffs, or who is a necessary party to a complete determination and settlement of the questions involved. This includes the common-law rule, that the defendant is one who claims adversely to the legal claim of the plaintiff, or who has incurred a legal liability with reference to the plaintiff’s claim, and where there were several defendants, they should all represent a common interest or liability, and not separate and independent rights. It also includes the equity rule, that all persons interested in the controversy adversely to the plaintiff, or whose presence is necessary to a complete adjustment of the controversy, should be defendants. ‘Equity delights to do complete justice, and not by halves.’ Hence, all persons who have a material interest in the subject-matter, and who would be affected by the action of the court, should be present, so as to be concluded by the adjudication, and thus avoid the vexation and expense of further litigation.” *565 We think, under the facts and circumstances of this case, the motion of defendant was in apt time and should have been granted. The court below should have made an order to issue, directing -that the Morris Plan Bank of Greensboro, N. C., the Morris Plan Bank of Winston-Salem, N. C., and the Morris Plan Bank of Virginia be made parties “to a complete determination or settlement of the questions involved.” N. C. Code 1931 (Michie), sec. 218 (c), subsec. 13, in part is as follows: “Any stockholder may appeal to the Superior Court from the levy of assessment; the issue raised by the appeal may be determined as other actions in the Superior Court.” In Bank v. Earley, 204 N. C., 297 (299), it is said: “This action involves primarily an accounting, and for that reason is equitable in its nature. The accounting may be had only in the Superior Court. Trust Co. v. Leggett, 191 N. C., 362, 131 S. E., 752. All the stockholders of the insolvent bank are proper if not necessary parties. The complaint is not demurrable for misjoinder of parties or causes of action. No judgment can be rendered against any of the stockholders until the amount for which each stockholder is liable has been determined. This amount cannot exceed the par value of the shares of stock owned by him, but may be less.” In Trust Co. v. Hood, 206 N. C., 543 (546), is the following: “The jurisdiction of the Superior Courts of this State, in a proper case, to restrain the Commissioner of Banks is not affected by the provisions of C. S., 218, providing for the liquidation of insolvent banking corporations organized and doing business under the laws of this State. The Commissioner of Banks is an administrative officer of the State, and in the performance of his duties as prescribed by statute is subject to the jurisdiction of the Superior Courts, in the exercise of their equitable jurisdiction.” In the brief of plaintiff is the following: “Defendant alleges a contract made and entered into between the bank of which he was a stockholder and the three corporations named therein; alleges that the said corporations have not complied with their contract and are seeking to avoid compliance therewith; alleges that the Commissioner of Banks should seek to cause said corporations to comply with their contract. Certainly, if the High Point Morris Plan Bank has a contract with the three corporations named in the defendant’s pleading, the Commissioner of Banks should and will, if he has not already done so, seek to cause said corporations to comply with their contract, but that will have to be done in a proper action' instituted by the Commissioner of Banks against these corporations, and not in the ease at bar.” Under section 456, supra, “to a complete determination or settlement of the questions involved,” we see no reason why the motion of defendant *566 should have been overruled by the court below to bring in the parties mentioned so that the whole controversy may be settled in this action. The matter involved an accounting equitable in its nature and subject to the jurisdiction of the Superior Court. For the reasons given, the judgment of the court below is Reversed. CoNNoe, J., dissents.