Camp v. First Nat. Bank

• Decision Date: 07 October 1902
• Citation: 44 Fla. 497,33 So. 241
• Parties: CAMP et al. v. FIRST NAT. BANK OF OCALA.
• Court: Florida Supreme Court

33 So. 241

44 Fla. 497

CAMP et al. v. FIRST NAT. BANK OF OCALA.

Florida Supreme Court

October 7, 1902

Error to circuit court, Marion county; Richard McConathy, Referee.

Action by the First National Bank of Ocala against Robert J. Camp and others. Judgment for plaintiff, and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. In a suit against several upon a joint cause of action, on appeared, but filed no pleas, others appeared and filed pleas, and the sheriff returned that another could not be found in the county. Upon application of the plaintiff and those defendants who had filed pleas the cause was referred to a referee for trial. Thereafter the referee permitted an amendment of the sheriff's return so as to show that the defendant mentioned therein did not reside in the county, it being proved that such was the fact, and that the sheriff ought to have made that return in the first instance. Held that the referee had power to permit the amendment.

2. Under the decisions of this court in Melton v Brown, 25 Fla. 461, 6 So. 211, and McCallum v Driggs, 35 Fla. 277, 17 So. 407, where it is proven that parties placed their names on the back of a note, before its delivery to the payee, for the purpose of lending credit to the instrument with the payee by their signatures, and there was no understanding that their liability was not to attach until after the payee had indorsed the note, they are liable as joint makers, even though it be proved that they wrote their names on the back of the note as sureties for the maker, and without participating in the consideration for which the note was given; and the rule so announced applies even though the words 'demand, protest, and notice of protest waived' be written over such signatures.

3. A bank becomes the absolute owner of money deposited with it to the general credit of a depositor, in the absence of any special agreement importing a different character into the transaction, and the relationship between the parties is simply that of debtor and creditor.

4. The right of a bank to apply a depositor's credit balance to the satisfaction of a debt due if by such depositor is in the nature of a set-off or application of payments, which will not be required by law so as to benefit a surety liable for such debt where there is no instruction from the depositor to so apply it, nor agreement between him and the bank that it shall be done, and where the debt has not been included in the account between the bank and the depositor by the course of dealing between them.

5. In order to entitle a party to a verdict or finding upon a plea tendering an immaterial issue, every fact alleged in such plea must be proved as alleged.

6. The finding of a referee upon a question of fact, where the witnesses are examined before him, is entitled to the same weight as the verdict of a jury.

7. Where, pending suit upon a note, plaintiff, for a valuable consideration, paid him by a third party, in writing agrees to transfer and assign the note and any judgment thereon to such third party or to his order, or assigns, on demand, but no demand for such transfer is made before judgment, the plaintiff still remains the owner of the legal title to the note, and may continue the suit in his own name.

8. Where interest at the legal rate is allowed as an incident to the recovery, it is not necessary that there should be an express claim therefor in the declaration, provided the ad damnum clause is in an amount sufficient to include it; but where interest beyond the legal rate is sought to be included in the recovery as damages by reason of a special contract between the parties to pay such interest, the declaration must be so framed as to apprise the defendant of the claim therefor, in order to warrant its recovery.

9. The legal existence of a national bank is not ended by its insolvency and the appointment of a receiver therefor by the comptroller of the currency, but it still continues as an entity capable of suing and being sued, notwithstanding such appointment; and where, under such circumstances, the legal title to a note, not an asset of the bank, is in its name but the beneficial ownership in another, a suit upon such note may be maintained in its name to recover the money due thereon.

10. Where the judgment of a referee is reversed by the appellate court, he has no further jurisdiction of the case after such reversal, unless it should be again referred to him by consent of parties.

COUNSEL R. A. Burford, for plaintiffs in error.

Shackleford & Pettingill, for defendant in error.

OPINION

PER CURIAM.

The First National Bank of Ocala brought suit in the circuit court of Marion county against Robert J. Camp, John S. Camp and B. F. Camp, partners as R. J. Camp & Bros., and Rene R. Snowden, George B. Griffin, and John A. Bishop, charging them as joint makers upon a note, of which the following is a copy:

'$600. Ocala, Florida, April 27th, 1891.

'Three months after date I promise to pay to the order of the First National Bank of Ocala six hundred & 00/100 dollars, at the First National Bank of Ocala, Fla.; value received; with interest at the rate of two per cent. per month after maturity until paid. If not paid at maturity, the holder may, at his option, place in the hands of an attorney for collection, and, if collected through an attorney, each of us, whether maker, security, or indorser on this note, hereby agree to pay all costs of such collection, including attorney's fees of ten per cent. of the face hereof.

John A. Bishop.

'Due July 27-30-91.

'No. 432.

'R. R. Snowden.

'G. B. Griffin.

'Demand, protest, and notice of protest waived.

'R. R. Snowden.

'G. B. Griffin.

'R. J. Camp & Bro.'

There was no service upon Bishop. The cause was referred to a referee for trial, who rendered judgment against the other defendants, from which a writ of error has been sued out. There was summons and severance as to Snowden, and errors are assigned by the other defendants named in the judgment.

I. The first assignment of error is that the referee erred in permitting an amendment to the sheriff's return as to nonservice upon the defendant Bishop, and in hearing the cause as to the remaining defendants. Summons was duly issued, and a return was made thereon by the sheriff, as follows: 'Came to hand the 3d day of Feby., 1892, and not executed, as John A. Bishop cannot be found in Marion county. Feby. 26th, 1892. E. T. Williams, Shff. Marion Co.' Defendant Snowden appeared, but filed no pleas. The other defendants, except Bishop, filed pleas on May 23, 1892, and with their consent and that of the plaintiff, expressed in writing, the cause was referred, on March 22, 1893, to Richard McConathy, a practicing attorney, for trial. The same defendants filed other pleas on May 30, 1893, and on December 23, 1895, filed additional pleas puis darrein continuance. On January 25, 1895, the referee made an order permitting the amendment of the sheriff's return as to Bishop so that it should read as follows: 'Came to hand the 3rd day of February, 1892, and not executed, as John A. Bishop does not reside in Marion county.' That is the amendment now complained of by the plaintiffs in error under this assignment of error. Affidavits filed in support of the application proved that the amendment was sought to make the return accord with the fact, and that the return as amended was one which the sheriff ought to have made in the first instance. Doggett v. Jordan, 3 Fla. 215. Its object was to effect a severance as to Bishop, not served with process, and admit of the prosecution of the suit against the other defendants, of whom jurisdiction had been acquired, in accordance with section 1179 of the Revised Statutes. In view of the circumstances detailed above, showing that plaintiffs in error, by their pleadings, had treated the suit as discontinued so far as Bishop was concerned, without objecting to his absence as a party, it may be questioned whether they are in a position to insist upon the objection now made; but, if they are, we do not think it possesses merit. The cause was referred to the referee, and he was thereby invested with full authority to make such amendments as might be necessary to make the record properly exhibit the facts, which was all that the amendment undertook to do.

II. The second, third, ninth, and tenth assignments of error may be considered together. The second and ninth relate to the admissibility of effect of testimony, and the third and tenth allege error in finding that the defendants were makers of the note sued on. All of them must fail if, as the refered found, the evidence conclusively showed that the plaintiffs in error were liable as makers of the note sued on. They were sued as makers, and by their pleas denied that they made the note. The evidence introduced, both on the part of the plaintiff and of the defendants, showed conclusively that the defendants put their names on the back of the note before its delivery to the payee for the purpose of lending credit to the instrument with the payee by their signatures, and under such circumstances it is the settled rule in this state that they are liable as makers, even although it be proved that they wrote their names on the back of the note as sureties for the maker, and without participating in the consideration for which the note was given. Melton v. Brown, 25 Fla. 461, 6 So. 211; McCallum v. Driggs, 35 Fla 277, 17 So. 407. Under the rule adopted, the status of such irregular indorsers as joint makers is conclusively fixed when it is made to appear that their signatures are affixed before delivery of the instrument, and for the purpose of lending their credit thereto with the payee, and...