Atkinson v. . Smith
Supreme Court of North Carolina
Civil Action heard on report of a referee, at Spring Term, 1883, of Joi-iNSTON Superior Court, before Mac Rae, J. The solicitor for the state brought an action under the statute in the name of the state on the relation of himself against William F. Atkinson, guardian of the plaintiff John A. Atkinson, to secure the estate of bis ward in his hands.
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Civil Action heard on report of a referee, at Spring Term, 1883, of Joi-iNSTON Superior Court, before Mac Rae, J. The solicitor for the state brought an action under the statute in the name of the state on the relation of himself against William F. Atkinson, guardian of the plaintiff John A. Atkinson, to secure the estate of bis ward in his hands. At fall term, 1873, the defendant William A. Smith was appointed receiver in the action; but, afterwards during the same term of the court, he declined the receivership, and B. V. Smith was appointed in his stead, and executed his bond as receiver…
1Opinion of the Court
Mérrimos, J.,
after stating the case. There is no statute of this state, nor any well settled practice under The Code, or the common law method of procedure, or in courts of equity, that authorizes such a judgment as that demanded by the appellant. No notice of his motion for judgment upon the receiver’s bond had been given the surety, nor had any independent action been brought, nor leave obtained from the court to sue upon the bond.
The regular course of procedure, according to well settled practice in cases like this, is to proceed against the receiver in the first instance, and if he shall…
2Cases cited1 opinion
- Bank of Washington v. CreditorsSupreme Court of North Carolina · 1882
3Cited by7 opinions
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- State Ex Rel. Boothe v. UpchurchSupreme Court of North Carolina · 1892
- Black v. . GenterySupreme Court of North Carolina · 1896
- Hershy Chocolate Co. v. SharpeSupreme Court of Alabama · 1917
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