Opinion
(Filed 11 April, 1905.)
Banks — Receiver — Creditor's Suit.
Where a bank failed and a receiver was appointed at the instance of a creditor in an action brought in behalf of himself and all other creditors, the plaintiff cannot maintain an action against the receiver to recover a deposit. but his remedy is to file a petition in the original cause.
ACTION by George P. Crutchfield against T. A. Hunter, receiver of the Bank of Guilford, heard by Shaw, J., and a jury, at (Special) January Term, 1905, of GUILFORD.
E. J. Justice for plaintiff.
Scales, Taylor Scales and J. N. Wilson for defendant.
This was an action commenced on 4 December, 1903, to recover a debt. The plaintiff submitted to a nonsuit upon an intimation of the court that the debt was barred by the statute of limitations, and appealed.
The plaintiff was a depositor with the Bank of Guilford, and on 31 July, 1898, deposited with it $290 and took a receipt from the cashier therefor on one of the deposit slips of the bank. He has not been given credit for this deposit on his account with the bank, and never has been credited with it, or had it paid to him in any (55) settlement with the bank or in any other way. The bank failed, and on 3 January, 1899, a receiver was appointed to take charge of its assets, at the instance of a creditor in an action brought on behalf of himself and all other creditors.
This action cannot be maintained. The remedy of the plaintiff is to file his petition in the original cause wherein a receiver was appointed. Upon the hearing of his petition and the answer of the receiver thereto, the pleas raised will be adjudicated. Dobson v. Simonton, 93 N.C. 268, is "on all-fours," and the opinion presents a full discussion of the subject. Let this action be dismissed without prejudice.
Dismissed.
Cited: Black v. Power Co., 158 N.C. 472.