Baird v. First Nat. Bank of Fessenden

• Decision Date: 05 January 1931
• Docket Number: No. 5869.,5869.
• Citation: 60 N.D. 286,234 N.W. 71
• Parties: BAIRD v. FIRST NAT. BANK OF FESSENDEN.
• Court: North Dakota Supreme Court

60 N.D. 286

234 N.W. 71

BAIRD

v.FIRST NAT. BANK OF FESSENDEN.

No. 5869.

Supreme Court of North Dakota.

Jan. 5, 1931.

Syllabus by the Court.

An action properly triable to a jury cannot be tried anew in the Supreme Court, even though a jury is waived and the cause tried to the court without a jury.

Syllabus by the Court.

An appeal in a case properly triable to a jury, wherein a jury is waived and the cause tried to the court, is governed by the provisions of section 7656, Comp. Laws 1913, and the appellant has the burden of specifying and showing error, and the review on appeal is limited to the errors specified.

Appeal from District Court, Wells County; McFarland, Judge.

Action by L. R. Baird, as receiver of the Farmers' & Merchants' State Bank of Bowdon, an insolvent banking corporation, against the First National Bank of Fessenden, a corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

B. F. Whipple, of Fessenden, for appellant.

Zuger & Tillotson, of Bismarck, for respondent.

CHRISTIANSON, J.

In the complaint in this case it is alleged that the Farmers' & Merchants' State Bank of Bowdon, N. D., was a banking corporation duly organized under the laws of this state; that on January 19, 1925, it became insolvent and closed its doors; that the plaintiff, Baird, was appointed receiver on March 23, 1925, and that he thereafter duly qualified as such; that the defendant bank is a banking corporation organized under the laws of the United States of America; and that on or about February 11, 1925, the defendant bank received the sum of $331.73 for the use and benefit of the plaintiff; “that said sum was collected by and paid to the defendant First National Bank of Fessenden for and on account of the plaintiff under and by virtue of the following facts and circumstances, to-wit: That one R. O. Torland, prior to February 11, 1925, borrowed the sum of $2500 from the Bank of North Dakota upon certain real estate owned by him; and such sum was by agreement of plaintiff, defendant, R. O. Torland, and one Henry E. Hanson hereinafter named, delivered to the said First National Bank of Fessenden to be by it disbursed and applied upon certain obligations and debts of said R. O. Torland, then owing to diverse persons, among which obligations was an indebtedness of said R. O. Torland to Henry E. Hanson, and said First National Bank having received said sum of $2500 as aforesaid paid out and applied the same upon various debts of said R. O. Torland and after having done so there remained in defendant's hands a balance of $331.73 to which said Hanson was entitled; that at the said time the said Hanson was indebted to the Farmers & Merchants State Bank of Bowdon in a large amount of money, and had with the knowledge, consent and agreement of the defendant assigned the amount of money coming to him from said R. O. Torland as aforesaid, to-wit: $331.73 which the defendant then and there agreed to pay over to said Farmers & Merchants State Bank of Bowdon and the receiver thereof, and said Farmers & Merchants State Bank of Bowdon and the receiver thereof, this plaintiff, thereupon became entitled to have and receive from the defendant First National Bank of Fessenden the sum of $331.73.”

It is further alleged that the plaintiff has demanded said sum from the defendant, and that it has failed to pay the same or any part thereof.

The defendant interposed an answer wherein it admitted the corporate character, the insolvency and closing of the Farmers' & Merchants' State Bank of Bowdon, and the appointment of Baird as receiver thereof. The answer further admitted the corporate capacity of the defendant, but denied all other allegations of the complaint. The answer further set forth a counterclaim wherein it is alleged that the defendant bank on or about the 8th and 10th days of January, 1925, received checks drawn upon the Farmers' & Merchants' State Bank of Bowdon, aggregating $486.66; that such checks were drawn by persons who at that time had on deposit in the latter bank sufficient funds to meet such checks; that the checks were by the defendant bank forwarded in due course of business for collection through the American National Bank of St. Paul, Minn.; that the checks were by the latter bank forwarded to the Farmers' & Merchants' State Bank for payment; that the checks were received by the latter bank marked “Paid,” returned to the various parties by whom they were issued; that the said Farmers' & Merchants' State Bank issued its draft for the amount of such checks payable to the American National Bank of St. Paul, but that the Farmers' & Merchants' State Bank was closed before the draft was paid; and that the defendant, on account of having indorsed and negotiated such checks, was required to and did pay to the American National Bank of St. Paul the amount thereof, to wit, $486.66.

The case was tried to the court, without a jury, upon the issues thus framed, and resulted in a judgment in favor of the plaintiff. The defendant appeals from the...