Hensley v. Hood

OlakksoN, J. While the sheriff of Yancey County held the sum of $1,940.95 as an excess from an execution sale of the plaintiff’s property, a consent judgment was entered in favor of the People’s Bank of Burns-ville, North Carolina, and against the plaintiff by attorneys purporting to represent the plaintiff. Under said consent judgment the sheriff paid the said $1,940.95 over to the People’s Bank of Burnsville, North Carolina. The said consent judgment was set aside at the August Term, 1933, of the Superior Court of Yancey County by Schenck, J., on the ground that the attorneys signing said consent judgment on behalf of plaintiff had no authority to represent her. And the People’s Bank of Burnsville, N. C., was ordered by said court to return the $1,940.95, with interest, to the clerk of the Superior Court of Yancey County, to be held by him until final determination upon appeal. The bank never returned the money into court as ordered. The said bank was taken over by the defendant Commissioner of Banks on 2 October, 1933, for liquidation. The order of Schenck, J., was affirmed by the Supreme Court of North Carolina in Bank v. Penland, 206 N. C., 323. The only question involved on this appeal is whether the plaintiff, under the facts found by the court below, is entitled to a preferred claim against the assets of the People’s Bank of Burnsville, North Carolina, for the sum of $1,940.95, and interest thereon from 25 January, 1930. We think so. Under a consent judgment, the amount in controversy was paid over by the sheriff of Yancey County, North Carolina, to the People’s Bank of Burnsville, N. O. Upon motion in the cause, this consent judgment was set aside by Schenck, J., and on appeal to this Court was affirmed. [22] In. the order setting aside said consent judgment, Schenck, J., ordered and adjudged: “That the People’s Bank return to the court the sum of $1,940.95, together with interest from the date it was received by said bank, said amount to be held by the court until final determination upon appeal, and then to be paid out according to law.” The bank, so far as plaintiff was concerned, received the money wrongfully. There existed between her and the bank no relationship of debtor and creditor. Bank v. Bank, 207 N. C., 216. The bank having never complied with the court order, became liable ex maleficio, and the plaintiff is entitled to a preference. The case of Zachery v. Hood, Comr. of Banks, 205 N. C., 194, is in point. Flack v. Hood, Comr. of Banks, 204 N. C., 337; Andrews v. Hood, Comr. of Banks, 207 N. C., 499. The judgment of the court below is Affirmed. ScheNOk, J., took no part in the consideration or decision of this case.