First-Citizens Bank & Trust Co. v. Berry , 2 N.C. App. 547 ( 1968 )

Mallard, C.J.

At the outset it should be stated that on this appeal we are concerned only with the cause of action alleged in the complaint by plaintiff against the defendant Fayetteville Tractor. We are not concerned with the cause of action alleged by plaintiff against H. Dolph Berry, Receiver of Four County Tractors, Inc., John A. Mc-Lamb, or L. D. Minges.

Plaintiff asserts in its brief that the question presented on this appeal is: “Did the trial Court err in dismissing the plaintiff’s action without ordering that the complaint be treated as a Proof of Claim in the receivership proceedings?” Plaintiff asked that a receiver be appointed in this case, but before its motion mas heard, a receiver was appointed for Fayetteville Tractor in the case of Tractor and Auto Supply Company, Inc. v. Fayetteville Tractor and Equipment Company, Inc., et al, which has No. 6812SC358 in this Court. This case was consolidated for argument with the case under consideration.

Plaintiff contends that the two cases are so intertwined that they must be considered together. We do not agree with this contention. Each case is here upon different assignments of error.

First-Citizens filed suit in the instant case on 20 May 1965. Shortly thereafter, the Receiver was appointed in the other case referred to above, which was filed 27 May 1965, and First-Citizens filed a proof of claim in that case which is numbered 6812SC358 in this Court. First-Citizens asserts it has alleged in both cases facts which if proven will place its claim in a status of priority over that of ordinary creditors of Fayetteville Tractor.

In the case under consideration, the plaintiff does not cite any authority in support of its contention that the trial court committed error in dismissing the plaintiff’s action and in failing to order that the complaint be treated as a proof of claim in the case in which the Receiver was appointed, other than to say that appellant presents its argument and citation of authority in its brief filed in case No. 6812SC358.

The title to all of the real and personal property of an insolvent corporation vests in the receiver immediately upon appointment. G.S. 1-507.3. A judgment rendered in an' independent action after the appointment of a receiver does not create a lien on the corporate property as against the receiver. Hardware Co. v. Holt, 173 N.C. 308, 92 S.E. 8; 6 Strong, N. C. Index 2d, Receivers, § 12, p. 602. All claims against an insolvent corporation must be presented to the receiver in writing. G.S. 1-507.6. The receiver holds title to the property vested in him as an officer of the court. He receives his authority from the applicable statutes, together with the directions and instructions of the court in its order appointing him. Battle v. Davis, 66 N.C. 252; Stuart v. Boulware, 133 U.S. 78, 33 L. Ed. 568; Union National Bank of Chicago v. Bank of Kansas City, 136 U.S. 223, 34 L. Ed. 341. The receiver holds and disposes of all property coming into his hands in his official capacity under the direction of the court. G.S. 1-507.2. The question of the appointment of and the validity of the appointment of the receiver is not raised or presented on this record.

In the case of Surety Corp. v. Sharpe, 232 N.C. 98, 59 S.E. 2d 593, the Supreme Court said:

“The law contemplates the settlement of all claims against the insolvent debtor in the original action in which the receiver is appointed, except in the infrequent instances where the appointing court, for good cause shown, grants leave to a claimant to bring an independent action against the receiver.”

Proof of claims must be filed with the receiver in writing pursuant to the statute and within the time limit directed by the court or such claim may be barred. G.S. 1-507.6; Brewer v. Elks, 260 N.C. 470, 133 S.E. 2d 159.

In the case under consideration, we are of the opinion and so decide that it was within the power and authority of the court in its discretion to dismiss First-Citizens’ cause of action against the appellee and to require First-Citizens to rely upon the filing and assertion of its claim against the Receiver of Fayetteville Tractor, appellee, in the cause of action in which the Receiver was appointed.

From the record in case No. 6812SC358, it appears that First-Citizens was on 3 June 1965 made an additional party defendant in that case and filed its proof of claim therein on 22 October 1965. It was the duty of First-Citizens, after receiving proper notice, to file its own proper claim in the action in which the Receiver was appointed. There is no allegation in the complaint or motion in the record filed herein by plaintiff asking that the complaint, as amended, be treated as proof of claim in the case in which the Receiver was appointed. Thus, the Superior Court, upon the hearing of the Receiver’s plea in bar, did not commit error in failing to order the complaint in this case to be made a part of the plaintiff’s proof of claim in the case in which the Receiver was appointed. Plaintiff on 22 October 1965 had filed its proof of claim in that case, and on 2 November 1965 the Receiver, in his answer filed herein, requested that plaintiff’s complaint be treated as a verified proof of claim in the case in which the Receiver was appointed. Apparently plaintiff was satisfied with its proof of claim for two and one-half years and did not want and did not accept Receiver’s motion to have this complaint treated as its proof of claim. The records in both cases do not show any motion made by plaintiff to amend its proof of claim until 15 May 1968 when an order was filed in case No. 6812SC358 dated 13 May 1968 and signed by Judge Braswell, denying plaintiff’s motion for an order allowing it to amend its proof of claim filed therein. It is interesting to note that there is nothing in either of the records to show when plaintiff’s motion was made, and whether it was oral or in' writing. (Appellee’s brief in case No. 6812SC358 reveals that this motion was made orally on 13 May 1968, the same day it was ruled on.) However, it is observed that it was dated the same date as and filed two days after Judge Braswell’s order is dated and filed in which he held in case No. 6812SC358 that First-Citizens’ claim was not entitled to priority.

The first time plaintiff mentions anything about the complaint in this action becoming part of its proof of claim in the case in which the Receiver was appointed was in its brief.

Plaintiff’s exceptions numbered two and three are deemed abandoned. They were not claimed as the basis for an assignment of error and were not grouped in the assignments of error and were not mentioned in plaintiff’s brief. (See Rule 28 of the Rules of Practice in the Court of Appeals.)

The trial court did not commit error in the signing and entry of the judgment of 13 May 1968 dismissing the plaintiff’s action without ordering that the complaint be treated as a proof of claim in the case in which the Receiver was appointed. The judgment of the Superior Court is

Affirmed.

Campbell and MoeRis, JJ., concur.