Buncombe County v. . Hood, Comr. of Banks

CoNNOR, J. Plaintiffs cannot maintain this action against the resident defendant, Gurney P. Hood, Commissioner of Banks, for the reason that it is not alleged in the complaint that prior to the commencement *795 of tbe action, plaintiffs presented tbeir claim against tbe Central Bank and Trust Company, to said defendant, and that said defendant rejected said claim. No action or suit to recover on a claim against an insolvent banking corporation, organized under tbe laws of tbis State, can be maintained against tbe Commissioner of Banks, where said Commissioner bas taken into bis possession tbe assets of sucb corporation, and is engaged in its liquidation, as be is authorized and directed to do by chapter 113, Public Laws of North Carolina, 192? (N. C. Code of 1931, sec. 218(c), until sucb claim bas first been presented to said Commissioner and rejected by him. Tbe statutory provision to tbis effect is in accord with tbe decision of tbis Court in Crutchfield v. Hunter, 138 N. C., 54, 50 S. E., 557. In that case it was held that where a bank failed, and a receiver was appointed at tbe instance of a creditor in an action brought in behalf of himself and all other creditors, tbe plaintiff, a depositor of tbe insolvent bank, cannot maintain an action against tbe receiver to recover bis deposit. Plaintiff’s remedy was to file a petition in tbe original cause. Tbe principle on which tbe appeal in that case was decided is approved in Black v. Power Co., 158 N. C., 468, 74 S. E., 468. In that case it is said that tbe statute regulating tbe appointment of receivers of insolvent corporations, clearly contemplates tbe settlement of all questions involving claims against tbe corporation in one action, and that while tbe statute does not withdraw from a court of equity tbe power to permit a separate action to be prosecuted, tbis should not be done until tbe receiver bas at least bad tbe opportunity to pass on tbe claim. Where tbe Commissioner of Banks bas taken into bis possession tbe assets of an insolvent banking corporation, organized under tbe laws of tbis State, and' is engaged in tbe liquidation of said corporation, under tbe provisions of chapter 113, Public Laws, 192?, bis relationship to tbe corporation, and to its debtors and creditors, with respect to its assets, is that of a receiver. N. C. Code of 1931, sec. 218(e). As no cause of action is alleged in tbe complaint on which tbe plaintiffs can recover jointly of the resident and of tbe nonresident defendant, tbe nonresident defendant bas tbe right under tbe act of Congress, to remove tbe action from tbe State Court to tbe District Court of tbe United States for trial. Simmons v. Ins. Co., 196 N. C., 667, 146 S. E., 569. There is no error in the judgment ordering tbe removal of tbe action in accordance with tbe petition of tbe defendant, United States Guarantee Company. Tbe judgment is Affirmed.