The action was instituted in the name of the Commissioner of Banks to recover on two promissory notes alleged to have been executed and delivered by K. B. Johnson and J. Beale Johnson to the Raleigh Banking and Trust Company. It appears from the record that at the hearing no evidence was formally introduced. The plaintiff produced and exhibited the notes in open court, and at the request of the court the defendant filed a copy of a letter from the Fifth Third Union Trust Company, of Cincinnati, Ohio, to the defendant J. Beale Johnson, dated 22 September, 1930, stating that the company held the two notes on which the plaintiff brought suit and demanding payment five days before maturity.
Judgment was awarded the plaintiff on the ground that the answer filed by the appellant raises no issue of fact to be found by the jury. *Page 388 The answer denies the allegation that at the time the Corporation Commission took possession of the Raleigh Banking and Trust Company the latter had the notes in controversy among its assets, or now has them, and puts in issue the plaintiff's title to the notes.
Assuming that the plaintiff's possession of the notes raises a presumption of his right to enforce payment the presumption is subject to rebuttal. White v. Hines, 182 N.C. 275. As the appellant's answer controverts the allegation of ownership, the plaintiff was not entitled to judgment on the pleadings.
Furthermore, the action must be prosecuted in the name of the officer who occupies the position of Commissioner of Banks and not by "Commissioner of Banks," as above entitled. Commissioner of Banks v. Harvey, ante, 380. This defect, however, may be cured by amendment.
Error.