Addison v. Dent County Savings Bank of Salem

• Decision Date: 16 December 1920
• Docket Number: No. 2773.,2773.
• Parties: ADDISON v. DENT COUNTY SAVINGS BANK OF SALEM et al.
• Court: Missouri Court of Appeals

226 S.W. 322 205 Mo. App. 622 ADDISON
v.
DENT COUNTY SAVINGS BANK OF SALEM et al. No. 2773. Springfield Court of Appeals. Missouri. December 16, 1920.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by G. D. Addison against the Dent County Savings Bank of Salem and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

J. J. Cope and Clyde C. Cope, both of Salem, for appellant.

McGee & Bennett, of Salem, for respondents.

STURGIS, P. J.

The plaintiff sued defendant bank to recover the amount due him as a depositor, alleging that he had on deposit in said bank the sum of $1,508.37 which said bank had refused to pay him on demand. The answer of the bank admitted that it held the sum of $1,465.13 deposited in the name of plaintiff, but that same was a joint account of plaintiff and his wife, Clara Addison, and that plaintiff had consented that his wife, Clara Addison, have authority to draw checks on such account, which she had been doing for a number of years, and that during the month of December, 1919, the defendant bank had paid out all the money to plaintiff's credit to Clara Addison on checks drawn by her. The bank's defense as stated in its answer depended solely on the authority of Clara Addison to draw out said money on her checks. Thereupon Clara Addison filed her motion to be made a defendant in said cause on the grounds afterwards set up in her answer, and the court sustained the motion over plaintiff's objection. She then filed her answer, setting up, in addition to the alleged authority given her by plaintiff to draw checks against the funds deposited in his name, that the entire funds deposited in his name was in truth and in fact her money which plaintiff had taken without her consent in writing. Two issues were presented: (1) That, though the money on deposit belonged to plaintiff, yet because of the authority given by plaintiff to his wife to check same out, the defendant bank should be protected in so doing; and (2) that, though deposited in plaintiff's name, this money really belonged to his wife, and the hank should be protected in paying it over to her. These issues were tried and submitted to the jury, resulting in a verdict and judgment for defendants. Only the first of these issues was raised by the bank; the second was raised by the wife.

A serious question arises on the right of the wife to be made a defendant on her own motion and over plaintiff's objection, and to defend the action on an issue not raised by the only defendant plaintiff wished to sue and against whom alone he asked any relief. The plaintiff never amended his petition so as to make Clara Addison a defendant, and never asked any relief against her. There are two sections of our statute invoked by defendants as justifying the court's action. Section 1732, R. S. 1909, provides that—

"Any person may be a defendant who has or claims an interest in the controversy adverse to plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein."

This section would apparently leave it discretionary with plaintiff to say whom he will make a defendant within the limits fixed therein. And so it has been construed in Kortjohn v. Seimers, 29 Mo. App. 271, where the court said:

226 S.W. 323

"Our statute provides that any person may be a defendant who has or claims an interest in the controversy adverse to plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. Rev. St. § 3465. This means that a plaintiff may make any party thus situated a defendant to the action, and not that any party may insist on being made a defendant to any legal controversy which is likely to affect his interest in some collateral manner. The latter construction would lead to the most absurd results, and results entirely at variance with our methods of legal procedure."

This case was followed in Browning v. Hilig, 69 Mo. App. 594, 596; Skinner v. Slater, 159 Mo. App. 589, 592, 141 S. W. 733; State ex rel. v. Railroad, 193 S. W. 932. The Kortjohn Case said that a contrary rule would lead to absurd results. Such results appear here, in that a third party is made defendant, against whom no relief is asked by plaintiff, and such party is permitted to raise by its answer a defense not raised by the named defendant, though for its benefit. Defendant also cites section 1849, R. S. 1909, as authorizing the court's action in making Clara Addison a party defendant. That section provides that—

"When a complete determination of the controversy cannot be had without the presence of other parties, the court may...