Buerstetta v. Tecumseh Nat. Bank

• Decision Date: 19 January 1899
• Citation: 77 N.W. 1094,57 Neb. 504
• Parties: BUERSTETTA v. TECUMSEH NAT. BANK.
• Court: Nebraska Supreme Court

57 Neb. 504

77 N.W. 1094

BUERSTETTA

v.TECUMSEH NAT. BANK.

Supreme Court of Nebraska.

Jan. 19, 1899.

Syllabus by the Court.

1. The facts incorporated as an amendment into a petition set out in the opinion, and held to constitute a separate and independent cause of action from that stated in the original petition.

2. Where the facts incorporated into a petition, by way of amendment, constitute a cause of action separate and independent from that stated in the original petition, the statute of limitations against the cause of action pleaded in the amendment runs until the filing of such amended petition.

3. An action for relief on the ground of fraud is barred in four years after the discovery of the fraud.

Error to district court, Johnson county; Stull, Judge.

Action by Anna B. Saunders against the Tecumseh National Bank. On the death of plaintiff, Charles Buerstetta was substituted as plaintiff. Verdict for defendant, and plaintiff brings error. Affirmed.L. C. Chapman and J. W. Deweese, for plaintiff in error.

S. P. Davidson and F. M. Hall, for defendant in error.

RAGAN, C.

Anna B. Saunders, on the 19th day of August, 1893, brought this suit to the district court of Johnson county against the Tecumseh National Bank. In her petition filed on that date, Mrs. Saunders alleged that in the year 1889 a corporation by the name of Russell & Holmes was conducting a banking business in the city of Tecumseh, Neb.; that in said year she deposited with said bank, or loaned to it, $400, $150 at one time and $250 at another, for each of which sums the said bank issued to her an ordinary certificate of deposit, drawing 6 per cent. interest; that the moneys represented by said certificates of deposit had not been paid to her. To show the liability of the Tecumseh National Bank to her for the moneys represented by said certificates of deposit, Mrs. Saunders in her petition pleaded the following facts: “Plaintiff further states that afterwards, to wit, on or about the 13th of April, 1890, the Bank of Russell & Holmes went into liquidation, and closed its said business, and ceased its organization as said Bank of Russell & Holmes; and thereupon afterwards, to wit, on the 14th day of April, 1890, the defendant was duly organized and created a banking corporation under and by virtue of the various banking laws enacted by the congress of the United States known and designated as the ‘National Banking Acts,’ and is at the present time carrying on a banking business in Tecumseh, Nebraska, under the name and style of the ‘Tecumseh National Bank.’ Plaintiff further alleges that this defendant, so organized and created a banking corporationas aforesaid, came into possession of and received, as successor to the Bank of Russell & Holmes, the property, assets, emoluments, business, and good will of said Bank of Russell & Holmes, and also the said sums mentioned in plaintiff's first and second causes of action, and deposited with the said last-named bank for this plaintiff, and this defendant thereupon became liable to the plaintiff for said deposits so received, with interest thereon at the rate of 6 per cent. per annum. The plaintiff further alleges that the business of this defendant was and is done and carried on in the same building and same room previously occupied by the Bank of Russell & Holmes for the transaction of its business, and that all of the stockholders and officers of the Bank of Russell & Holmes became stockholders and officers of this defendant upon its creation, and as such officers managed, controlled, and transacted its business. This plaintiff further alleges that the Bank of Russell & Holmes is wholly insolvent, and has no money or other property with which to pay those who had formerly made deposits with them.” To this petition the national bank filed an answer. A trial was had, resulting in a judgment in favor of Mrs. Saunders, and the national bank brought that judgment to this court for review on error, and it was reversed, upon the ground that the verdict upon which the judgment against the bank was based was not supported by sufficient evidence. Bank v. Saunders, 50 Neb. 521, 70 N. W. 42. A rehearing was subsequently granted in the case, and the former decision of the court adhered to, but upon the rehearing it was also ruled that the petition just quoted did not state a cause of action. Bank v. Saunders, 51 Neb. 801, 71 N. W. 779;Austin v. Bank, 49 Neb. 412, 68 N. W. 628. In the opinion written on the rehearing, it was stated that the first decision was not put upon the ground that the petition did not state facts sufficient to constitute a cause of action, because counsel for both parties to this case, and others of a like character, requested the court to pass upon the sufficiency of the evidence to sustain the judgment rendered. When the mandate reached the district court, Mrs. Saunders was dead, and the action was revived in the name of her administrator, and he, by leave of court, on the 6th day of December, 1896, filed an amended petition. This amended petition contained substantially the same allegations as the...