In Re Central Bank & Trust Co.

CONNOR, J. Tbe record in this proceeding shows that tbe respondent Commissioner of Banks duly excepted to tbe order of tbe court, and gave due notice of bis appeal from said order to tbis Court; that, with tbe approval of tbe court, it was agreed that tbe notice of appeal, tbe petition of tbe petitioner and tbe answer of tbe respondent, and tbe order of tbe court, containing its findings of fact, should constitute tbe case on appeal for tbis Court; and that it was adjudged by tbe court that an appeal bond in tbe sum of $50.00 was sufficient. In tbis Court, tbe appellee contends that tbe appellant Commissioner of Banks bad no interest which was affected by the order of tbe court, and was therefore not a person aggrieved by tbe order. For tbis reason, it is argued that tbe Commissioner of Banks bad no right to appeal from tbe order, and that bis appeal should be dismissed. C. S., 632. The appellee relies on tbe principle that a receiver, being an officer of tbe court, has no right, in tbe absence of authority from tbe court by which be was appointed, to appeal from an order instructing him with respect to tbe performance of bis duties as a receiver, 23 R. C. L., 133. Tbis principle has been recognized by tbis Court in Bank v. Bank, 127 N. C., 432, 37 S. E., 461, and in Strauss v. Loan Association, 118 N. C., 556, 24 S. E., 116. If tbe principle is applicable at all to tbe Commissioner of Banks, who is a statutory receiver of insolvent banks doing business in tbis State (Blades v. Hood, 203 N. C., 56, 164 S. E., 828, Buncombe County v. Hood, 202 N. C., 792, 164 S. E., 370), it is not applicable in tbe instant case, for tbe reason that tbe record shows that tbe exception to tbe order was noted, and tbe appeal was taken, with tbe approval of tbe court. Tbe appeal entries in tbe record justify tbe inference that tbe appeal was authorized by tbe court, if its authority was required. Tbe Commissioner of Banks, when engaged in tbe liquidation of the assets of an insolvent bank, as authorized by statute, does not derive bis power or bis authority from tbe court. His power and authority, both to take possession of an insolvent bank, and to liquidate its assets for distribution among its creditors according to their respective rights, are derived from tbe statute. Chapter 113, Public Laws of 1929, as amended by chapter 243, Public Laws of 1931. In a proper case, it is both bis right and bis duty to appeal from tbe order or tbe judgment in an action or proceeding to which be is a party. Tbe contention of the appellee in tbe instant ease, that tbe Commissioner of Banks has no right to prosecute bis appeal in tbis Court is not sustained. Tbe purpose of tbe statute is to secure an equitable distribution of the assets of an insolvent bank among its creditors in accordance with their respective *254 rights. An order or judgment which defeats this purpose is erroneous and will be reversed by this Court in the exercise of its appellate jurisdiction. The rule approved generally by the courts, with respect to the computation of interest on claims against an insolvent person or corporation which are to be paid out of the assets of such person or corporation, is that “in the distribution of the estate of an insolvent, interest should be computed to the time of the institution of insolvency proceedings upon all debts drawing interest either by agreement of the parties, or as legal damages for nonpayment.” 32 O. J., 884. This is the rule which was applied by the Commissioner of Banks in the instant case, and is, we think, not only a practical but a just rule. There was error in the order directing the Commissioner of Banks to disregard this rule in the instant case. It may be that the petitioner would have been entitled to interest on the amount of his damages for the wrongful and unlawful conversion of the Liberty Bonds at 6 per cent per annum. It did not, however, except to the judgment by which interest at only 4% per cent was allowed. The judgment is therefore conclusive in all respects on both the petitioner and the respondent. The order is Reversed.