Addison v. Dent County Savings Bank of Salem, Missouri,

• Decision Date: 16 December 1920
• Parties: G. D. ADDISON, Appellant, v. DENT COUNTY SAVINGS BANK OF SALEM, MISSOURI, et al., Respondent
• Court: Missouri Court of Appeals

226 S.W. 322

205 Mo.App. 622

G. D. ADDISON, Appellant, v. DENT COUNTY SAVINGS BANK OF SALEM, MISSOURI, et al., Respondent

Court of Appeals of Missouri, Springfield

December 16, 1920

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

REVERSED AND REMANDED.

Cause reversed and remanded.

Cope & Cope for appellant.

(1) The appellant, G. D. Addison, filed this suit against the Dent County Savings Bank for money had and received. The said bank in receiving plaintiff's money on current deposit immediately started the relation of debtor and creditor existing between them. Butcher v. Butler, 134 Mo.App. 61; O'Grady v. Stotts City Bank, 106 Mo.App. 366; Arnold v. Sedalia Nat'l Bank, 100 Mo.App. 474. (2) There is only one section of the statutes on which Clara Addison stood in making her request to be made a party defendant in this action and that is section 1732, R S. 1909. This section provides that "any party may be a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein." This section has been construed time and time again by our courts and it is universally held that the plaintiff may make any such party a party defendant and "there is no law authorizing any person to be made a party defendant, upon his own demand, in a suit previously pending, because his interest may be affected by the controversy in some collateral way. It means only that a plaintiff may make any such person a defendant if he chooses. Kortjohn v. Seimers, 29 Mo.App. 271; Browning v Hilig, 69 Mo.App. 594, 596; Skinner v. Slater, 159 Mo.App. 589, 592; State on inf. May v. C. R. I. & P., 193 S.W. 932.

McGee & Bennett for respondents.

(1) The fact that the intervening defendant was the wife of appellant would be no bar to her right to be made a party. Rice Stix & Co. v. Sally, 176 Mo. 107; R. S. 1909, sec. 8304. (2) Arguing for the limited construction of sec. 1732 appellant has been led into a grave fallacy; for they make bold to assert, "Certainly plaintiff is entitled to determine who he shall sue, if he sues the wrong party it is his own loss and no one can object except the original defendant." They overlook sec. 1849, which enjoins upon the court the solemn duty of ordering new parties to be brought in when a complete determination cannot be had without them. The construction placed on this statute is that the court may and should of its own initiative require them to be brought in. When advised as to the situation by the bank's answer and Mrs. Addison's motion, it was the duty of the court to require her to be made a party. R. S. 1909, sec. 1849; Judy v. Farmers & Traders Bank, 70 Mo. 407; O'Fallon v. Clopton, 89 Mo. 284. (3) Had this money not been previously paid out to the intervening defendant, the bank would have had the unquestioned right to have required her to be brought in, under Laws 1915, page 148. And the mere fact that the money had already been paid out did not change the issue, viz., "To whom did the money belong," nor when the money was paid out in pursuance to a previous understanding should the bank be deprived of the right to have this matter completely adjudicated by the real parties in interest. If she is a necessary party under this statute she is a necessary party after she gets the money, all the more so, because one suit should determine the whole controversy, not only between plaintiff and the bank, the bank and the intervener, but between the plaintiff, the bank and the intervener. Laws 1915, page 148, sec. 94; Bathgate v. Exchange Bank of Chula, 205 S.W. 875. (4) The wife does not lose the title to her property reduced to the possession of her husband, unless she consents thereto in writing. R. S. 1909, sec. 8309.

STURGIS, P. J. Farrington and Bradley, JJ., concur.

OPINION

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 $ 1508.57 which said bank had refused to pay him on demand. The answer of the bank admitted that it held the sum of $ 1465.13 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 bank 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, Revised Statutes 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 (Kortjohn v. Seimers, 29 Mo.App. 271), where the court said: "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. [Revised Statutes, sec. 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, Revised Statutes 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 order them to be brought in by an amendment of the petition, or by supplemental petition and a new summons." This section relates to amendment of pleadings and expressly provides that the new party shall be brought in by an amendment of the petition or by supplemental petition. If the rule that the issues are to be framed and limited by the pleadings and the procedure and judgment are to conform thereto it would seem necessary to amend the petition on bringing in new parties. A plaintiff should certainly not have judgment against a party when none is asked. Should a plaintiff refuse to amend...