Bank of Darlington v. Atwood
| Decision Date | 03 November 1930 |
| Citation | 36 S.W.2d 429,225 Mo.App. 974 |
| Parties | BANK OF DARLINGTON IN LIQUIDATION, ETC., RESPONDENT, v. L. ATWOOD, APPELLANT |
| Court | Kansas Court of Appeals |
Rehearing Denied 225 Mo.App. 974 at 978.
Appeal from the Circuit Court of Gentry County.--Hon. Guy B. Park Judge.
AFFIRMED.
Judgment affirmed.
F. P Stapleton, and Cook & Cummins for respondent.
G. A. Stultz and Geo. P. Adams for appellant.
Trimble, P. J., absent.
On the 20th day of October, 1927, the Finance Commissioner of the State of Missouri took over the property, business and affairs of the Bank of Darlington at Darlington, Gentry county, Missouri, said bank being insolvent at that time. Thereafter, this action was brought at the instance of said commissioner to recover an alleged overdraft, evidenced, according to the allegation of the petition, by a number of checks, the date and amount of each being stated.
There is a further allegation that the assistant cashier and bookkeeper of the bank who received and paid the checks failed and neglected to enter them on the books of the bank as a charge against defendant's account, thus making it appear that defendant had a balance in his account subject to check.
The pertinent parts of defendant's answer are that he was a customer of plaintiff bank during the years 1925, 1926 and 1927; that during all of that time he had a deposit in said bank sufficient to pay all checks given by him; that in truth, at the time said bank closed and was taken over by the finance commissioner, the bank was indebted to him in the sum of $ 339.03 and other large sums of money for which he should have received credit, and that on certain named dates, beginning on the 24th day of February, 1925, and ending on the 15th day of August, 1927, he made deposits of specific amounts on certain named dates for which he had not received credit in his account and, by way of cross-action, he asks judgment for $ 339.03. The reply was, in effect, a general denial.
After the issues were thus joined, plaintiff filed motion in which it is recited that a trial of the cause involved the examination of a long account, to-wit, the account of defendant in plaintiff bank throughout a number of years; that a multiplicity of issues are presented by the pleadings, each of which presents a separate question, and that the account to be examined is so long and the issues to be determined are so involved in tracing of notes and deposits in the bank that it is impossible to present the evidence to a jury in a manner that may be understood and carried in the minds of a jury throughout the trial.
The court sustained that motion and by its order of record appointed Edward G. Robinson referee for the purpose of determining both questions of law and fact and directing that he report his finding to the court. The referee heard the cause, made a finding that plaintiff was entitled to recover the sum of $ 783.65 with interest from the date of judgment and the costs of this action, and that defendant was not entitled to recover on his cross-action. The trial court approved the report and entered judgment in accordance therewith.
The first question presented by appellant is that it was error for the court to appoint a referee. The record reveals exception was not saved to the order appointing a referee.
It is well established that absent adverse rulings, and exceptions saved thereto, there is nothing before this court for review. [Gann v. Chicago, Rock Island & Pacific Railway Company, 319 Mo. 214, 6 S.W.2d 39.] If it is necessary to enable this court to review the action of the trial court in appointing the referee, that an exception thereto be saved, then there is nothing before this court on that subject to be reviewed. Appellant argues that the order appointing the referee is record proper and reviewable without an exception. He relies upon the holding in Kansas City v. Smith, 238 Mo. 323, 141 S.W. 1103, that where a litigant in an action at law demands a jury and the demand is refused, advantage may be taken of such action on appeal, although no exception is saved. In the instant case defendant did not request a jury nor did he, so far as the record reveals, object to the appointment of a referee, except that following the order of appointment, in the record proper, it is recited that "defendant excepts."
It has uniformly been held that the action of a trial court on an application for change of venue will not be reviewed unless exceptions were saved and the matter brought to the attention of the court by motion for new trial. [Wolff v. Ward, 104 Mo. 127, 145, 16 S.W. 161; Gibney v. Transit Company, 204 Mo. 704, 717, 103 S.W. 43.]
It has been ruled that the action of the court upon a motion for judgment on the pleadings will not be reviewed unless exception thereto has been preserved in the bill of exceptions. [Leahy v. Mercantile Trust Company, 296 Mo. 561, 586, 247 S.W. 396.]
The appointment of a receiver is a matter of exception and will not be reviewed on appeal in the absence of an exception preserved in the bill of exceptions. [Tuttle v. Blow, 163 Mo. 625, 643, 63 S.W. 839; Miller v. Falloon, 187 S.W. 839.]
It seems to us the appointment of a receiver is analogous to the appointment of a referee. The point is therefore ruled against appellant.
2. At the beginning of the trial before the referee the defendant objected to the taking of testimony for the reason that the action is based on the fraud and deceit of the assistant cashier of the plaintiff bank and that her knowledge was the knowledge of the bank and therefore the bank could not recover, and because no long account was involved in the action. The objection was overruled and evidence heard by the referee.
The plaintiff's evidence is that beginning in January, 1926 and ending in October, 1927, at various times checks drawn by the defendant on plaintiff bank were paid by that bank, laid aside, and not charged to his account. The assistant cashier who gave this evidence stated that the board of directors of the bank would not permit her to allow a customer to overdraw his account and she therefore concealed from them the fact that said...
To continue reading
Request your trial