Akin v. Hull

• Decision Date: 07 December 1925
• Docket Number: No. 15457.,15457.
• Citation: 277 S.W. 962
• Parties: AKIN v. HULL et al.
• Court: Missouri Court of Appeals

277 S.W. 962

AKIN v. HULL et al.

No. 15457.

Kansas City Court of Appeals. Missouri.

December 7, 1925.

Appeal from Circuit Court, Platte County; Guy B. Park, Judge.

"Not to be officially published."

Suit by Sarah J. Akin, administratrix of the estate of Frank J. Akin, deceased, against Charles V. Hull and others. From a ruling and order of court sustaining defendants' motion for new trial after verdict for plaintiff, plaintiff appeals. Affirmed.

Sterling P. Reynolds, of St. Joseph, for appellant.

James H. Hull, of Platte City, and German & Hull, of Kansas City, for respondents.

ARNOLD, J.

This is an appeal from a ruling and order of the trial court sustaining defendants' motion for a new trial after verdict for plaintiff.

Plaintiff, as administratrix of the estate of her deceased husband, Frank J. Akin, brought this suit against defendants as directors of the bank of Dearborn in Platte county, Mo. The petition alleges that plaintiff had deposited certain funds in said bank in January, February, and following months in the year 1923; that at the time said deposits were made the bank was insolvent, or in a failing condition, and that defendants, as directors thereof, knew of such condition of the bank; that plaintiff was ignorant thereof; and that by reason of the premises defendants were liable to plaintiff, under the law, for receiving the alleged deposits as stated in the petition.

The petition is in two counts; the first alleging the matters and things above referred to. The second count thereof charged negligence on the part of defendants in the management of the affairs of the bank. The prayer asks judgment in the sum of $5,294.79, and interest. The amended answer admits: (1) The death of Frank J. Akin, and that plaintiff is administratrix of his estate; (2) the incorporation of the Bank of Dearborn, and that up to October 1st, during the year 1923, defendants were directors of said bank; and (3) denies generally all the other allegations in the petition.

As affirmative defenses, the amended answer states that the assets and affairs of said bank are, and have been, since October 1, 1923, in the hands of the commissioner of finance of the state of Missouri, and under his direction and control are being administered for the benefit of its depositors, stockholders, and creditors; that the assets of said bank in the hands of said commissioner are sufficient to pay substantial dividends to all creditors and depositors of said bank entitled thereto, but that the amount of said dividends is unknown and unascertainable, and will be so until the final liquidation thereof.

The amended answer further states that the institution of this suit by plaintiff is premature; that, if plaintiff has any cause of action, as pleaded in the first count of the petition, such cause of action would not accrue until the affairs of the bank had been administered by the commissioner of finance, and fully liquidated, and that only at that time could the amount of plaintiff's damages, if any, be ascertained.

The answer to the second count of the petition, after admitting formal matters, as in the amended answer to the first count, is a general denial, followed by the affirmative allegations contained in the answer to the first count. The reply is a general denial.

On motion of plaintiff, certain parts of the answer of defendants were stricken out, but the parts thus stricken out are not shown by the record. Upon the pleadings thus made the cause went to trial to 11 jurors (by agreement) 1 of the jurors sworn to try the case being ill and unable to serve. The verdict was for plaintiff in the sum of $5,294.79.

Motions for a new trial and in arrest were duly filed, and the motion for a new trial was sustained upon the ground, as stated by the court, "that the verdict is not supported by the evidence, and there is not sufficient evidence on which to found a verdict." From this ruling and order of the court plaintiff duly appealed.

The basis of the appeal as set forth in the assignment of errors is, of course, that the court erred in sustaining defendants' motion for a new trial. It is urged that defendants admit they were directors of the bank, knew the condition of its affairs, and that under the law this made them liable to plaintiff.

This proposition of law would seem to he convincing if, and only if, the testimony presented clearly shows, first, that the bank, in fact, was in a failing condition at the time the deposits in question were made and defendants knew of such condition. Plaintiff cites White v. Poole (Mo. App.) 272 S. W. 1021, and section 11764, R. S. 1919, in support of her position. An examination of the case of White v. Poole shows that the court held that a depositor had the right to bring suit against the directors of a failed bank under the statute cited for receiving...