Carlock v. Loyd
| Decision Date | 10 March 1921 |
| Docket Number | 4772. [*] |
| Parties | CARLOCK v. LOYD. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Gregory County; William Williamson Judge.
Action by W. B. Carlock, as administrator with the will annexed of the estate of Vic. H. Stevens, deceased, against L. Q. Loyd. From a judgment for plaintiff on directed verdict and order denying new trial, defendant appeals. Affirmed.
J. L Hannett and J. L. Hannett, Jr., both of Winner, for appellant.
French, Orvis & French, of Yankton, for respondent.
Action on a promissory note in the sum of $2,928.40; defense, payment and the statute of limitations. Defendant was a stockholder and secretary of the Gregory Light & Power Company, hereinafter called the corporation. Plaintiff's testator, Stevens, was employed as manager. The corporation was then indebted to a bank in the same amount as the face of the note in suit, which was evidenced by a note signed by defendant and others. The bank was urging payment. Stevens agreed to take up that note if Loyd would give him the note in suit. This was done. Stevens sold the note in suit, and with the proceeds took up the note to the bank. The note in suit was afterwards presented as a claim against Stevens' estate and was allowed and paid. It was alleged in Loyd's answer that the note in suit was given upon the understanding that, if Loyd would give it, Stevens would purchase and take up the note given to the bank and would hold the note in suit as collateral thereto; that it was agreed that Stevens should repay himself out of the earnings of the corporation for the amount advanced by him to purchase the note to the bank; that Stevens did collect and appropriate to his own use money belonging to the corporation far in excess of the amount necessary therefor; and that by reason thereof the note in suit was paid. Two witnesses testified that they heard Stevens tell defendant that he had enough of the earnings of the corporation to pay off the note in suit and that he would "bring it over." On the other hand, the judgment roll in an accounting action brought by the corporation against the administrator of Stevens' estate showed that at the time of Stevens' death he had funds of the corporation in his possession in the sum of $2,470.44, a sum less than the face of the note in suit, and judgment was entered therefor in favor of the receiver of the corporation. The judgment roll in still another action, a foreclosure suit brought against the administrator and the receiver of the corporation, showed that the proceeds of the judgment in the accounting action were applied in part payment of a note and mortgage held by the administrator against the corporation. The trial court directed a verdict for plaintiff. From the judgment and order denying a new trial defendant appeals.
Appellant claims: (a) That the judgment rolls above referred to were inadmissible in this action; (b) but, if admissible, the trial court should not have directed the verdict in view of the contrary testimony; and (c) that the statute of limitations barred respondent's right of recovery.
Was Loyd, the defendant in this action, so interested in the subject-matter of the litigation between the corporation and Stevens' administrator in the action for accounting that he may be said to be a party to the litigation? It appears that he was a stockholder and secretary of the corporation; that he employed the attorney to begin that action; that he detailed the alleged facts to such attorney and from such facts the attorney dictated the complaint. It appears that Loyd verified the complaint stating the facts therein alleged to be true of his own knowledge. It appears also that the complaint in that action alleged substantially the same facts that are alleged in the answer in this case with reference to the note here sued on, and that he claimed in that case, as in this, that Stevens, as manager of the corporation, had received and appropriated to his own use moneys of that company in excess of all expenses more than sufficient to pay the note here sued on. It also appears that the prayer for judgment in that case asked that the administrator account for all moneys received and disbursed by Stevens as manager of the corporation, and that the balance of moneys in the hands of the administrator be first applied in payment of that note. It also appears that in that action Loyd brought from Omaha and paid one witness at his own expense. In 15 R. C. L. 1009, we find the following:
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