Commissioner of Banks Ex Rel. Farmers & Merchants Bank v. Harvey , 202 N.C. 380 ( 1932 )

CoNNOB, J.

Tbe issue of law raised by tbe demurrer to tbe complaint in this action is whether tbe action on tbe note set out in tbe complaint can be maintained in tbe name of tbe “Commissioner of Banks, Dx rel. Farmers and Merchants Bank.” It is contended by tbe defendant, Nannie L. Harvey, that on tbe facts alleged in tbe complaint, tbe action can be maintained only by tbe person now bolding tbe office of Commissioner of Banks. This contention was not sustained by tbe judge of tbe Superior Court, who overruled tbe demurrer. In this there was error. Tbe demurrer should bave been sustained.

Chapter 243, Public Laws of North Carolina, 1931, is entitled, “An act to create tbe office of Commissioner of Banks, and to provide for tbe maintenance of the Banking Department.” It is provided therein that on or before 1 April, 1931, and quadrennially thereafter, the Governor, with the advice and consent of the Senate, shall appoint a Commissioner of Banks, who shall hold his office for a term'of four years. It is further provided that the Commissioner of Banks, before entering upon the discharge of his duties, shall enter into bond, with some surety company authorized to do business in the State of North Carolina, as his surety, in the sum of not less than fifty thousand dollars, conditioned upon the faithful and honest discharge of all duties and obligations imposed upon him by statute.

Among the duties imposed by statute upon the Commissioner of Banks is that of taking possession of and liquidating insolvent banking corporations organized under the laws of this State. To that end, he is authorized by statute to take possession of all the assets of an insolvent banking corporation, and to collect the same, by suit or otherwise. Actions to collect notes which pass into his possession as assets of the corporation, must be brought by him, as Commissioner of Banks. Otherwise some question might arise as to the liability of the Commissioner of Banks under his official bond, for his defaults, if any, in the liquidation of an insolvent banking corporation.

The judgment is reversed. Upon the certification of this decision to the Superior Court of Lenoir County (C. S., 1417) the summons and complaint may be 'amended in accordance with this opinion. C. S., 515 and C. S., 547.

Reversed.