Legal Opinion

Black v. . Gentery

Supreme Court of North Carolina

Decided September 5, 1896PublishedCited by 3 opinions

Civil ACTION, against L. C. Geutery and H. S. Van noy, sureties on the bond of Herman Williams and James E. Clayton, receivers of the Ore Knob Copper Company of Ashe County, against whom the plaintiff had recovered judgment at Spring Term, 1887, of Ashe Superior Court. The action was heard on complaint and demurrer before Norwood, J'., at Fall Term, 1896, of Ashe Superior Court. The complaint did not allege that leave to sue on the receiver’s bond had been obtained.

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Civil ACTION, against L. C. Geutery and H. S. Van noy, sureties on the bond of Herman Williams and James E. Clayton, receivers of the Ore Knob Copper Company of Ashe County, against whom the plaintiff had recovered judgment at Spring Term, 1887, of Ashe Superior Court. The action was heard on complaint and demurrer before Norwood, J'., at Fall Term, 1896, of Ashe Superior Court. The complaint did not allege that leave to sue on the receiver’s bond had been obtained. The demurrer was as follows : “ 1. That this action ought not to be maintained for that James E. Clayton and Herman Williams,…

1Opinion of the Court

Cr.ARK, J.:

Sureties upon the bond of a receiver do not become parties to the suit or officers of the court by reason thereof. Thurman v. Morgan, 79 Ca., 367; Gluck and Becker on Receivers, Sec. 88. Their liability can only be maintained and enforced-by an independent action in which they have the constitutional right of trial by jury. They cannot be summarily proceeded against by an order to show cause, or motion in the cause, unless they have a part of the trust funds in their hands, and then only to the extent of such funds. Bank v. Creditors, 86 N. C., 323 ; Atkinson v. Smith, 89 N. C., 72…

2Cases cited3 opinions

  1. Atkinson v. . SmithSupreme Court of North Carolina · 1883
  2. Bank of Washington v. CreditorsSupreme Court of North Carolina · 1882
  3. State Ex Rel. Boothe v. UpchurchSupreme Court of North Carolina · 1892

3Cited by3 opinions

  1. Wilson v. Rankin.Supreme Court of North Carolina · 1901
  2. Hershy Chocolate Co. v. SharpeSupreme Court of Alabama · 1917
  3. Black v. . Copper Co.Supreme Court of North Carolina · 1894

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