Corporation Commission v. Farmers Bank & Trust Co.

110 S.E. 839, 183 N.C. 170, 1922 N.C. LEXIS 230

• Court: Supreme Court of North Carolina
• Decided: March 15, 1922
• Status: Published

Opinion

Hoke, J.

From a perusal of tbe present record, it is clear tbat tbe appeal has been prematurely taken, and under tbe decisions applicable tbe same must be dismissed without prejudice to tbe rights of tbe parties in tbe premises. Cement Co. v. Phillips, 182 N. C., 437; Beck v. Bank, 157 N. C., 105; Pritchard v. Spring Co., 151 N. C., 249.

In Cement Co. v. Phillips, supra, tbe position is strongly stated, and supported by numerous authorities, and in Pritchard’s case, supra, an action to wind up tbe affairs of an insolvent corporation, judgment -bad been entered disposing of exceptions to report, and making distribution of part of assets, but sucb judgment not making final disposition of tbe matter, tbe appeal was dismissed. Speaking to tbe question in tbat case, tbe Court said:

“In tbis condition of tbe record, and on tbe facts indicated, tbe Court is of opinion tbat tbe appeal bas been prematurely taken, and tbat tbe same must be dismissed without prejudice. It bas been tbe uniform ruling of tbis Court tbat wben a reference bas been entered uj)on, it must proceed to its proper conclusion, and tbat an appeal will only lie from a final judgment or one in its nature final. Brown v. Nimocks, 126 N. C., 808; Driller Co. v. Worth, 117 N. C., 515, and Haley v. Gray, 93 N. C., 195.

“If a departure from tbis procedure is allowed in one case, it could be insisted upon in another, and each claimant, conceiving himself aggrieved, could bring tbe cause here for consideration, and litigation of tbis character would be indefinitely prolonged, costs unduly enhanced, and tbe seemly and proper disposition of causes prevented.”

There being only an excerpt from tbe receiver’s report, with no evidence or facts except as relevant to tbe claim of tbe Hanover National Bank and no entries showing what claims were presented, we are not in a position to act definitely upon tbe question, but consider it not improper to intimate tbat as now advised, it would seem to be necessary to a proper disposition of tbe questions involved in tbis litigation tbat tbe Atlantic Bank & Trust Company of Greensboro be formally made party to tbe proceedings. And tbat tbe report should disclose tbe amount'of indebtedness of defendant to tbe Hanover National Bank, together with tbe entire amount, and as near as may be tbe value of all tbe collateral held by said Hanover Bank, as security for said indebtedness.

Appeal dismissed.