Atkinson v. . Smith

89 N.C. 72

• Court: Supreme Court of North Carolina
• Decided: October 5, 1883
• Status: Published

Opinion

Mérrimos, J.,

after stating the case. There is no statute of this state, nor any well settled practice under The Code, or the common law method of procedure, or in courts of equity, that authorizes such a judgment as that demanded by the appellant. No notice of his motion for judgment upon the receiver’s bond had been given the surety, nor had any independent action been brought, nor leave obtained from the court to sue upon the bond.

The regular course of procedure, according to well settled practice in cases like this, is to proceed against the receiver in the first instance, and if he shall fail in the proper discharge of his duty within the scope of his bond, then to obtain leave of the court to sue upon his bond. It may be, that in some eases, the surety might by order of the court, and upon reasonable notice, be brought into the action in which the receiver had been appointed, and proceeded against therein. But this is not the usual course pursued, nor is it to be encouraged, if indeed, i.t could be sustained in any case. Bank v. Creditors, 86 N. C., 323; High on Receivers, §129 et seq; Kerr on Receivers, 260.

In our judgment, the course pursued by the superior court was the proper one.

There is no error. The judgment must be affirmed, and it is so ordered. Let this be certified.

No error. Affirmed.