First National Bank of Charlotte v. Iredell Land Co.

Supreme Court of South Carolina

First National Bank of Charlotte v. Iredell Land Co.

38 S.E. 613, 60 S.C. 306, 1901 S.C. LEXIS 105

DecidedApril 18, 1901

StatusPublished

This text of 38 S.E. 613 (First National Bank of Charlotte v. Iredell Land Co.) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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First National Bank of Charlotte v. Iredell Land Co., 38 S.E. 613, 60 S.C. 306, 1901 S.C. LEXIS 105 (S.C. 1901).

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Opinions

The opinion of the Court was delivered by

Mr. Justice Pope.

It seems from the record that the defendant, the National Union Bank of Rock Hill, S. C., held a note for about $4,947.77, given to it by the defendant, the Iredell Rand Company, which became due prior to 28th February, 1899, and1 on that date suit was brought thereon in the Court of Common Pleas for York County, S. C., and the defendant, the Iredell Rand Company, neither appeared nor answered. That on the 30th d'ay of March, 1899, the plaintiff, the First National Bank of Charlotte, N. C., while holding a note for some $1,900, made to it by the defendant, the Iredell Rand Company, but which note would not have matured for four months from its date, to wit: on the 24th *309 day of June, 1899, learned that the said Iredell Land Company was either insolvent or in imminent danger of insolvency, and that assets of said land company consisted of about fifty acres of land near the corporate limits of Rock Hill, S. C., and worth about $5,000, brought suit in the usual form of a creditor’s bill in equity, by which, after setting out all the foregoing facts, it prayed: “a. That a receiver may be appointed' by this honorable Court to take charge of, collect and administer the assets of said1 defendant corporation, b. That the creditors of said defendant corporation be called in and be present and establish their several demands before this Court in this action, c. That all creditors of said defendant land company be enjoined and restrained from prosecuting their several demands save in this honorable Court and in this action, d. That plaintiff have judgment upon the maturity of its obligation for the sum of $1,900 and for such other and further relief as may seem equitable and meet.” Immediately after the service of the summons and complaint, the Iredell Land 'Company met and determined that it was its duty not to resist the appointment of a receiver nor to create any delay; hence its attorney, by formal resolution, was directed to answer such complaint by admitting the allegations thereof and by consenting to the relief prayed for. Accordingly, on the 5th day of April, 1899, at chambers, Judge Ernest Gary passed the following order: “It appearing that due notice of the motion herein was served March 31st last, and that the defendant by its answer adimits plaintiff’s equity as prayed for, now, on motion of Jas P. and Jno. R. Hart, attorneys for plaintiff, it is ordered: 1st. That A. E. Smith, upon entering into bond in the sum of $3,000, payable to the clerk of the court of common pleas1 for York County, conditioned as required by the act of the General Assembly of 1897, be, and he is hereby, appointed receiver in this action, with such authority over the property and the assets of the defendant corporation as is conferred by law and by the usage of this Court, conditioned for the faithful performance of his duties as such receiver. 2d. It is fur *310 ther ordered, that all creditors of the defendant, Iredell Land Company, be, and they are hereby, enjoined1 from suing or prosecuting their several demand's against said defendant corporation save in this action and in this Court. 3d. Any person becoming a party to the cause herein may move for such other and further order as he may be advised. 4th. It is further ordered), that any creditor who at the date of this order has a suit pending, or that may be affected by the terms of this order, be served with a copy of the same, and that he may move at the present ensuing term of Court, or thereafter, to vacate or modify the same, if so advised. The value of the property of said corporation is shown in the pleadings to be $5,000. 5th. That the complaint, answer, proof and exhibits be filed with this order.”

On the yth day of April, 1899, A. E- Smith filed his bond with sureties, which bond was approved and he entered upon the discharge of his duties as receiver. Thereafter the National Union Bank of Rock Hill, S. C. — no other creditor uniting with it — made a motion to revoke the order appointing a receiver, &c., and on-the 12th day of April, 1899, Judge Ernest Gary passed the following order: “After hearing argument of counsel, and on motion of Wilson & AVilson, attorneys for the National Union Bank of Rock Hill, S. C., a creditor of said Iredell Land Company, with action pending, it is ordered, that the order heretofore made in the above cause restraining creditors of the Iredell Land Company from suing or prosecuting their demands save in said cause, be, and the same is, so modified as to allow the said the National Union Bank of Rock Hill, S. C., to' prosecute its action against the said Iredell Land Company to final judgment without hindrance or prejudice, und'er the terms of the said order.” No appeal was taken from this order, and the National Union Bank of Rock Hill, S. C., took its judgment in April, 1899, against the Iredell Land Company for nearly $5,000, in its suit against said the Iredell Land Company. Thereafter, creditors were called in to present their demands in the action of Eirst National Bank of Charlotte, N. C., *311 against the Iredell Land Company, and the defendant, the National Union Bank of Rock Hill, S. C., presented its claim as a judgment before the clerk of the court for York County, and was reported as a judgment by said clerk in his report upon the claims of creditors. In the meantime, orders1 had already been passed providing for the sale of the land's which belonged to the Iredell Land Company, and the proceeds of such sales were in Court. However, in due time the First National Bank of Charlotte, N. C., excepted to the rank accorded by this referee in his report on claims to the alleged judgment of the National Union Bank of Rock Hill, S. C., upon the ground that, whereas, Judge Ernest Gary had appointed a receiver, who took charge of all the property of the Iredell Land Company five days before the National Union Bank of Rock Hill, S. C., took its judgment against said land company, that, therefore, it had to come in and take its pro rata share of such assets with all other creditors. When this matter was heard by Judge Benet, he held that a proper construction of the order of 12th April, 1899, made by Judge Ernest Gary, would require the National Union Bank of Rock Hill, S. C., to rank as a judgment creditor. 'The Reporter will publish Judge Benet’s decree in his report of the case. From that decree of Judge Benet this appeal is taken upon ’the following exceptions: 1st. For error in holding that the effect of the order of April 12th, 1899, permitting judgment to be taken by the National Union Bank, respondent, gave it priority of payment out of the monies in the hand's of A. E. Smith, receiver. 2d. For error in not holding that upon the appointment of a receiver for the insolvent corporation, the Iredell Land Company, all of its assets were placed in custodia legis, and that no liens could be acquired over these assets by judgment or otherwise, unless the order appointing the receiver had been revoked and the assets returned to the defendant corporation.” If it was an original pure question of law, we would unquestionably hold that the appellant is right in contending that the appointment of a receiver, and passing an order forbidding all suits against *312

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The opinion of the Court was delivered by

Mr. Justice Pope.

It seems from the record that the defendant, the National Union Bank of Rock Hill, S. C., held a note for about $4,947.77, given to it by the defendant, the Iredell Rand Company, which became due prior to 28th February, 1899, and1 on that date suit was brought thereon in the Court of Common Pleas for York County, S. C., and the defendant, the Iredell Rand Company, neither appeared nor answered. That on the 30th d'ay of March, 1899, the plaintiff, the First National Bank of Charlotte, N. C., while holding a note for some $1,900, made to it by the defendant, the Iredell Rand Company, but which note would not have matured for four months from its date, to wit: on the 24th *309 day of June, 1899, learned that the said Iredell Land Company was either insolvent or in imminent danger of insolvency, and that assets of said land company consisted of about fifty acres of land near the corporate limits of Rock Hill, S. C., and worth about $5,000, brought suit in the usual form of a creditor’s bill in equity, by which, after setting out all the foregoing facts, it prayed: “a. That a receiver may be appointed' by this honorable Court to take charge of, collect and administer the assets of said1 defendant corporation, b. That the creditors of said defendant corporation be called in and be present and establish their several demands before this Court in this action, c. That all creditors of said defendant land company be enjoined and restrained from prosecuting their several demands save in this honorable Court and in this action, d. That plaintiff have judgment upon the maturity of its obligation for the sum of $1,900 and for such other and further relief as may seem equitable and meet.” Immediately after the service of the summons and complaint, the Iredell Land 'Company met and determined that it was its duty not to resist the appointment of a receiver nor to create any delay; hence its attorney, by formal resolution, was directed to answer such complaint by admitting the allegations thereof and by consenting to the relief prayed for. Accordingly, on the 5th day of April, 1899, at chambers, Judge Ernest Gary passed the following order: “It appearing that due notice of the motion herein was served March 31st last, and that the defendant by its answer adimits plaintiff’s equity as prayed for, now, on motion of Jas P. and Jno. R. Hart, attorneys for plaintiff, it is ordered: 1st. That A. E. Smith, upon entering into bond in the sum of $3,000, payable to the clerk of the court of common pleas1 for York County, conditioned as required by the act of the General Assembly of 1897, be, and he is hereby, appointed receiver in this action, with such authority over the property and the assets of the defendant corporation as is conferred by law and by the usage of this Court, conditioned for the faithful performance of his duties as such receiver. 2d. It is fur *310 ther ordered, that all creditors of the defendant, Iredell Land Company, be, and they are hereby, enjoined1 from suing or prosecuting their several demand's against said defendant corporation save in this action and in this Court. 3d. Any person becoming a party to the cause herein may move for such other and further order as he may be advised. 4th. It is further ordered), that any creditor who at the date of this order has a suit pending, or that may be affected by the terms of this order, be served with a copy of the same, and that he may move at the present ensuing term of Court, or thereafter, to vacate or modify the same, if so advised. The value of the property of said corporation is shown in the pleadings to be $5,000. 5th. That the complaint, answer, proof and exhibits be filed with this order.”

On the yth day of April, 1899, A. E- Smith filed his bond with sureties, which bond was approved and he entered upon the discharge of his duties as receiver. Thereafter the National Union Bank of Rock Hill, S. C. — no other creditor uniting with it — made a motion to revoke the order appointing a receiver, &c., and on-the 12th day of April, 1899, Judge Ernest Gary passed the following order: “After hearing argument of counsel, and on motion of Wilson & AVilson, attorneys for the National Union Bank of Rock Hill, S. C., a creditor of said Iredell Land Company, with action pending, it is ordered, that the order heretofore made in the above cause restraining creditors of the Iredell Land Company from suing or prosecuting their demands save in said cause, be, and the same is, so modified as to allow the said the National Union Bank of Rock Hill, S. C., to' prosecute its action against the said Iredell Land Company to final judgment without hindrance or prejudice, und'er the terms of the said order.” No appeal was taken from this order, and the National Union Bank of Rock Hill, S. C., took its judgment in April, 1899, against the Iredell Land Company for nearly $5,000, in its suit against said the Iredell Land Company. Thereafter, creditors were called in to present their demands in the action of Eirst National Bank of Charlotte, N. C., *311 against the Iredell Land Company, and the defendant, the National Union Bank of Rock Hill, S. C., presented its claim as a judgment before the clerk of the court for York County, and was reported as a judgment by said clerk in his report upon the claims of creditors. In the meantime, orders1 had already been passed providing for the sale of the land's which belonged to the Iredell Land Company, and the proceeds of such sales were in Court. However, in due time the First National Bank of Charlotte, N. C., excepted to the rank accorded by this referee in his report on claims to the alleged judgment of the National Union Bank of Rock Hill, S. C., upon the ground that, whereas, Judge Ernest Gary had appointed a receiver, who took charge of all the property of the Iredell Land Company five days before the National Union Bank of Rock Hill, S. C., took its judgment against said land company, that, therefore, it had to come in and take its pro rata share of such assets with all other creditors. When this matter was heard by Judge Benet, he held that a proper construction of the order of 12th April, 1899, made by Judge Ernest Gary, would require the National Union Bank of Rock Hill, S. C., to rank as a judgment creditor. 'The Reporter will publish Judge Benet’s decree in his report of the case. From that decree of Judge Benet this appeal is taken upon ’the following exceptions: 1st. For error in holding that the effect of the order of April 12th, 1899, permitting judgment to be taken by the National Union Bank, respondent, gave it priority of payment out of the monies in the hand's of A. E. Smith, receiver. 2d. For error in not holding that upon the appointment of a receiver for the insolvent corporation, the Iredell Land Company, all of its assets were placed in custodia legis, and that no liens could be acquired over these assets by judgment or otherwise, unless the order appointing the receiver had been revoked and the assets returned to the defendant corporation.” If it was an original pure question of law, we would unquestionably hold that the appellant is right in contending that the appointment of a receiver, and passing an order forbidding all suits against *312 the insolvent, except in the action wherein the receiver was appointed, effectually shuts the door against any person presenting, as a judgment, one obtained after a receiver was appointed; but we agree with Judge Benet in his construction of the two orders, one dated 5th April, 1899, and one on P2th April, 1899, passed by Judge Ernest Gary. No party to the cause at bar — and both of such orders were passed in the cause at bar — took any appeal therefrom at the time of their rendition, nor have they attempted to do so in the present instance — we mean, at this hearing before us. 'When an order is passed in a cause and no appeal is taken therefrom, such order is the law of that case. It seems the passage of the order of the 12th April, 1899, was contested before Judge Gary, and yet no appeal was taken from it. We need not multiply words. We are powerless to help the appellant, and all owing to his failure to appeal from the order in question. The exceptions must be overruled.

It is the judgment of this Court, that the judgment appealed from be affirmed.

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38 S.E. 613, 60 S.C. 306, 1901 S.C. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-of-charlotte-v-iredell-land-co-sc-1901.