Corporation Commission v. Bank of Vanceboro

CohNOR, J. The procedure in the instant case was in substantial compliance with statutes in force at the date of the commencement of the action, providing for the enforcement of the statutory liability of stockholders of banking corporations. In Smathers v. Bank, 135 N. C., 410, 47 S. E., 893, it is said: “In winding up the affairs of an insolvent corporation it is best that, as nearly as may be, the court having original jurisdiction bring all the parties interested in the final decree before it, to the end that their rights and equities may be adjusted and administered. The usual and better practice is to have an assessment upon the stockholders made by the court, upon an ascertainment from the report of the receiver, and notice issued to each stockholder to show cause why such assessment should not be enforced.” This procedure was approved in Trust Co. v. Leggett, 191 N. C., 362, 131 S. E., 752. The original assessments are not final or conclusive on the stockholders; they are made on the facts shown by the report of the receiver, and are only preliminary to the order that the stockholders of record be made parties to the action. When so made, each stockholder has the right to file his answer, and set up any defense, in law or in fact, to the assessment, which he may *424 be advised will avail bim. No final judgment against tlie stockholder can be rendered until he has become a party to the action, with full opportunity to be heard. Corp. Com. v. Bank, 192 N. C., 366, 135 S. E., 48. In the instant case, the judgment directs that each of the appellants shall have opportunity to file an answer, and thereby raises issues, either of law or of fact, which must be determined before any assessment can be enforced against him. There is no error in the judgment. Corp. Com. v. Bank, 193 N. C., 113, 136 S. E., 362. The statutes providing the procedure for the enforcement of the statutory liability of stockholders of a banking corporation, applicable in the instant case, have been superseded by chapter 113, Public Laws 1927. See N. C. Code of 1927, section 218(c), subsection 13. The validity of this statute was sustained by this Court in Corp. Com. v. Murphey, 197 N. C., 42, 147 S. E., 667. On appeal to the Supreme Court of the United States, the judgment of this Court was affirmed. 74 L. Ed., 598. There is no error in the holding of Judge Small that applicants are now, by virtue of the appearance in the action, parties thereto. Appellants’ contention that their appearance was special and not general, cannot be sustained. The appearance was for the purpose of challenging the validity of the order making the assessment, and not- solely for the purpose of challenging the jurisdiction of the court. The fact that appellants style their appearance as special is immaterial. Wooten v. Cunningham, 171 N. C., 123, 88 S. E., 1, and cases cited in the opinion of Walker, J. We find no error in the judgment. Affirmed.