
    WILSON v. RANKIN.
    (Filed December 23, 1901.)
    1. RECEIVERS' — Suit Against — Jurisdiction.
    Leave to sue a receiver may be granted at chambers either by the resident judge or the judge holding the courts of the district by assignment or exchange.
    2. RECEIVERS — Jurisdiction■—Waiver.
    Failure to secure leave to sue a receiver, if necessary, is cured unless demurred to.
    3. JUDGMENT — Assignment of Errors — Reversal.
    Where the only error assigned is as to an issue of law which the trial judge improperly submitted to the jury and instructed them erroneously thereon, the judgment below should be reversed.
    ActioN by Geo. T. Wilson, administrator of W. T. Wilson, against J. E. Kanlrin, receiver of tbe Asheville Street Kail-road Company, beard by Judge Frederick Moore and a jury, at September Term, 1901, of tbe Superior Court of BuNcombe County. From a judgment for tbe defendant, the plaintiff appealed.
    
      Stevens & Weaver•, and Locke Graige, for tbe plaintiff.
    
      F. A. Sondley, and J. 0. Martin, for tbe defendant.
   ClaeK, J.

This is an action by tbe plaintiff, administrator of his infant son, against tbe defendant as receiver of tbe Asheville Street Kailway Company, to recover damages for tbe death of bis intestate, alleged to have been caused by tbe negligence of said company while being operated by said receiver. Tbe defendant answered, denying tbe plaintiff being administrator, denying tbe appointment of defendant as receiver and bis operation of tbe road as snob, at tbe time of tbe accident, and denying tbat tbe plaintiff’s intestate was billed by tbe negligence of those operating said street railway. Nine issues were submitted, covering all tbe controverted points, all of wbicb were answered in favor of tbe plaintiff, except tbe third, wbicb was answered, under tbe direction of the Court, in favor of tbe defendant, and tbe plaintiff’s damages were assessed at $3,SYS.

Tbe defendant moved for a new trial for alleged errors appearing on tbe trial. Tbe plaintiff, on an intimation from tbe Court, reduced tbe amount of damages by remitting all in excess of $2,500, and tbe defendant has made no exceptions and does not appeal. By reason of tbe finding on tbe third issue, tbe Court refused tbe plaintiff’s motion for judgment on tbe verdict (as amended) for $2,500, and dismissed tbe action, and tbe plaintiff appealed.

Tbe third issue was as follows: “Did tbe plaintiff obtain tbe permission of this Court'to sue tbe defendant in this action before commencing tbe same?” Tbe evidence on this point was documentary and uncontradicted, and tbe Judge found as facts tbat, immediately before tbe beginning of this action, in August, 1898, tbe plaintiff, as administrator, applied to “Hon. Eugene D. Carter, then resident Judge of tbe Twelfth Judicial District, at bis private office,” for leave to bring this action against tbe defendant, and “tbe said Eugene D. Carter, as Judge, did then and there sign an order” granting tbe leave asked. Tbe order is regular in form, and was granted upon a motion entitled as of the cause in wbicb the defendant bad been appointed receiver. Tbe receiver bad been appointed in said .cause 1st January, 1897, by tbe Judge of tbe Superior Court. On this third issue, upon this evidence, the Court charged tbe jury as follows:

“The defendant being an officer of tbe Court, tbe law re-, quired tbe plaintiff to apply to tbe Court wbicb appointed tbe defendant as receiver and obtain tbe permission of tbe Court to sue tbe defendant in tbis action. Tbe plaintiff contends that be applied to Eugene D. Carter and obtained tbe leave. Tbe defendant contends that tbe leave to bring tbis action did not have the legal effect wbicb tbe plaintiff contends that it bad, and that tbe plaintiff did not in a proper manner obtain tbe leave of tbis Court to bring tbis action, before bringing it. Upon that issue, tbe third, I charge you that there is no evidence that tbe plaintiff, before tbe institution of tbis action, obtained tbe permission of tbe Court to bring it, and you should answer tbe third issue ‘No.’ ” The plaintiff excepted.

Tbis presents tbe only point in tbe case. We were favored with an able discussion, with a wide citation of authorities, on tbe question whether, if tbis was not sufficient leave to sue, any leave to sue was necessary. From these citations, it appears that in tbe United States Courts, tbe act of Congress of 1887 permits any receiver to be sued without leave, and that in tbe Courts of our sister States, while it is generally held that leave to sue a receiver should be obtained, and that while in some States it is ruled that tbe lack of such leave is a jurisdictional defect, in many others it is held that it is not, and that it may be cured, if objection is not made in apt time — among tbe latter States are New York, Massachusetts, Pennsylvania, Illinois, Indiana, Wisconsin and several others — and tbe plaintiff claims that tbe defect, if any in tbis case, was waived by not demurring. Tbe only authority in our State, Black v. Gentery, 119 N. C., 502, so bolds. Tbis being merely an action to establish a debt, and not to interfere with tbe property or management of tbe receiver, leave to- sue was a mere formal matter of course, and its omission, if not demurred to, was certainly cured. Moreover, Judge Greene later granted leave to issue an alias summons, wbicb was itself leave to further prosecute tbe action.

But aside from that, we are of opinion that leave to sue was granted in this case. The Code, section 336, confers jurisdictions as to injunctions upon “the resident Judge of the district, or the Judge assigned to the district, or hoi dinghy exchange the Courts of the district. Hamilton v. Icard, 112 N. C., 589. The Code, seo. 319, confers jurisdiction to appoint receivers upon. the Judges of the Superior Court having authority to grant restraining orders and injunctions, .as prescribed by section 336. The resident Judge being one of those having jurisdiction over receivers, it must follow that he has the incidental poweres connected therewith, and could grant the leave to- sue by the same authority which confers that power on the Judge holding the Courts of the district in rotation or by exchange. His Honor was right in holding that the application should be “to the Court which appointed the defendant as receiver,” but that Court was the Superior ■Court, not the individual who appointed the defendant receiver in January, 1897, and in the Superior Court, the statute confers as to receivers jurisdiction on the resident Judge as much as upon the Judge assigned to the district or holding the Courts thereof by exchange. - It would be very inconvenient ofttimes if this were not so, when during a long vacation the Judges assigned to a district may be at the other end of the State. We do not attach any importance to the heading of the order, the essential thing being that the Judge granted the leave; but it would seem more regular and proper that leave to sue a receiver should be upon motion in the cause in which he is appointed, as was here done, that a record thereof may be kept in that case for reference in passing-on a motion to discharge him. No reason or precedent occurs to us why an application for leave to sue should be made at term time, and the fact that either o>f the Judges named has jurisdiction clearly indicates such orders may be granted at Chambers, like injunctions and like orders.

If tbis bad been an erroneous instruction to tbe jury upon an issue of fact, a new trial upon tbis issue would be necessary. But it was a question of fact, and tbe Judge found tbe fact, upon documentary and uneontroverted evidence. Tie submitted an issue of law to tbe jury. Upon tbe facts found by bim, be should bave beld as a matter of law that leave to sue bad been granted. Tbe instruction to tbe jury to answer tbe issue “No,” was erroneous¡ and tbeir response to tbe issue of law is irrelevant and immaterial.

Upon tbe findings of tbe jury on tbe other eight issues, as to which there is no exception, judgment should bave been entered in favor of tbe plaintiff for tbe sum of $2,500, with interest from tbe first day of that term, and costs. Tbe judgment below is set aside, and tbe case is remanded that judgment may be entered below 'in conformity to tbis opinion.

Reversed.  