Oliver v. . Hood, Comr. of Banks

183 S.E. 657, 209 N.C. 291, 1936 N.C. LEXIS 459

• Court: Supreme Court of North Carolina
• Decided: January 22, 1936
• Status: Published

Opinion

Stacy, C. J.

The ruling on the motion to dismiss is not appealable. Plemmons v. Imp. Co., 108 N. C., 614, 13 S. E., 188. The ruling on the demurrer is. Griffin v. Bank, 205 N. C., 253, 171 S. E., 71.

The appeal of the plaintiff from the levy of assessment was before us at the Spring Term, 1935, on a procedural question. In re Bank, 208 N. C., 65, 179 S. E., 24.

The present proceeding is a direct attack upon the summary judgment of assessment. Craddock v. Brinkley, 177 N. C., 125, 98 S. E., 280; Note, Ann. Cas., 1914 B, 82; 15 R. C. L., 839.

The demurrer admits facts properly pleaded, but not inferences or conclusions of law. Distributing Corp. v. Maxwell, Comr., ante, 47; Phifer v. Berry, 202 N. C., 388, 163 S. E., 119.

It is not alleged in the complaint that plaintiff was not a stockholder in the Citizens Bank of Mount Olive at the time of its closing, and, for this reason, not liable to assessment. He has carefully avoided making such allegation, it seems. The only ground upon which he seeks to avoid the judgment of assessment is that there was no' certificate of stock standing in his name upon the books of the bank at the time of the assessment. Non constat that he may not have been an equitable owner of stock. C. S., 219 (a); Corp. Com. v. McLean, 202 N. C., 77, 161 S. E., 854; Darden v. Coward, 197 N. C., 35, 147 S. E., 671; Corp. Com. v. Murphey, 197 N. C., 42, 147 S. E., 667. The complaint is bad as against a demurrer.

It is still open to the plaintiff, however, to ask to be allowed to amend his complaint, if so advised. C. S., 515; Morris v. Cleve, 197 N. C., 253, 148 S. E., 253; McKeel v. Latham, 202 N. C., 318, 162 S. E., 747; S. c., 203 N. C., 246, 165 S. E., 694.

Eeversed.

Devin, J., took no part in the consideration or decision of this ease.