Parker v. Hood ex rel. Central Bank & Trust Co.

Clarkson, J. We think it unnecessary to go into a long discussion of this case. We think the judgment of the court below denying plaintiff a preference correct, but a judgment for the plaintiff should have been rendered for the debt due by the Central Bank and Trust Company to plaintiff. The referee, in an able and carefully prepared report, covering every aspect of the controversy, both the facts and law, has this to say: “In view of the decision in the case I have cited, Cooke v. Hood, 207 N. C., 14, and the many authorities which I have read, I have felt compelled to find and conclude that the plaintiff in this case is not entitled to the relief demanded in his complaint, and that judgment should be entered for the defendant, and the costs to be fixed by the court. . . . It is impossible to state how much time I did spend in investigation of the [499] law involved in this ease, for, as stated, my sympathies — -if I were permitted to have any — were with the plaintiff. I regret my inability to afford the relief demanded, especially so, as the general creditors will not receive anything in the way of dividends according to my information, and it was only after long research and investigation that I have become convinced that there was no other decision which I could render. If I am in error, I am very glad that the court will have the opportunity to correct me.” There was evidence to support the referee’s findings of fact and his judgment was confirmed by the court below “In all respects, both as to findings of fact and conclusions of law.” These findings of fact are ordinarily conclusive on this Court. The funds were intermingled and commingled in the Central Bank and Trust Company, and the transaction was one of debtor and creditor; and in other respects in the shifting of the funds there was no new money. Bank v. Corporation Commission, 201 N. C., 381; Hicks v. Corporation Commission, 201 N. C., 819. We think the case of Andrews v. Hood, Comr., 201 N. C., 499, distinguishable. For the reasons given, the judgment of the court below is Modified and affirmed. Devin, J., took no part in the consideration or decision of this case.