Amberson v. Johnson

• Decision Date: 28 November 1900
• Citation: 29 So. 176,127 Ala. 490
• Parties: AMBERSON v. JOHNSON.
• Court: Alabama Supreme Court

29 So. 176

127 Ala. 490

AMBERSON v. JOHNSON.

Supreme Court of Alabama

November 28, 1900

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by Thomas L. Johnson against Earnest Amberson, substituted for the Queen City Bank of Gadsden. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit was originally commenced against the Queen City Bank of Gadsden, and sought to recover dividends which had been declared by said bank on a certificate of stock in said bank. The Queen City Bank of Gadsden made and filed an affidavit under the statute (Code, § 2633), in which it stated that the $35 sued for by the plaintiff was the accumulated dividends which had been declared by it on $250 of stock in said bank which was subscribed for by Thomas H. Amberson, as trustee and that one Earnest Amberson claimed to be entitled to said dividends; that said claim was made without collusion between the bank and said Earnest Amberson. And thereupon the bank paid the $35 into court. After notice served, the claimant Earnest Amberson, by his guardian ad litem, one L. M Mitchell, appeared and propounded a claim to the money so deposited into court, and asked to be substituted as a party defendant to the suit in the place of the Queen City Bank. The substitution was made, and the cause was tried upon issue made between the said Thomas L. Johnson and Earnest Amberson the substituted defendant. Upon the trial of the cause it was shown that Thomas H. Amberson, as trustee, had subscribed for the capital stock in the Queen City Bank, as evidenced by the certificate of stock in question; that the certificate of stock was issued to "T. H. Amberson, trustee." The plaintiff testified that this certificate of stock was transferred to him by said T. H. Amberson, and was indorsed, "T. H. Amberson, Trustee." The certificate was introduced in evidence, and showed that it was issued to and indorsed by T. H. Amberson, trustee. Upon the cross-examination of the plaintiff, he testified that the stock was transferred to him by T. H. Amberson in part payment of an indebtedness due him from said Amberson. The evidence for the plaintiff tended to show that T. H. Amberson had subscribed for the stock for the benefit of Earnest Amberson, the substituted defendant, and that it was issued to him as trustee for said Earnest Amberson. It was shown that T. H. Amberson died before the institution of the suit. Upon the cross-examination of several of the witnesses introduced in behalf of the defendant, the defendant sought to prove by them that they had heard said T. H....