Coleman v. First Nat. Bank

• Court: Texas Court of Appeals
• Writing for the Court: Bookhout
• Citation: Coleman v. First Nat. Bank, 43 S.W. 938, 17 Tex. Civ. App. 132 (Tex. App. 1897)
• Decision Date: 24 December 1897
• Parties: COLEMAN v. FIRST NAT. BANK OF WAXAHACHIE et al.

43 S.W. 938

COLEMAN v. FIRST NAT. BANK OF WAXAHACHIE et al.

Court of Civil Appeals of Texas.

December 24, 1897.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Suit by Mrs. R. J. Coleman against the First National Bank of Waxahachie and others. From a judgment entered on demurrers to the petition, in favor of defendants, plaintiff appeals. Reversed.

The appellant instituted this suit in the district court of Ellis county, Tex., on August 27, 1895, against the First National Bank of Waxahachie and R. G. Phillips, to recover moneys alleged to have been deposited by her in said bank. The defendants filed exceptions to the petition, which were sustained by the court, and judgment was entered for defendants, from which plaintiff has appealed. The facts are fully stated in the opinion.

Stripped of its unnecessary verbiage and irrelevant allegations, the petition, after the formal allegations as to citizenship of the parties, the incorporation of the defendant bank, and that defendant Phillips was its cashier at the time of the happening of the things charged, alleged, substantially, that on or about July 30, 1889, petitioner deposited with the defendant bank the sum of $4,000 in her own name and to her sole credit, and the defendant so accepted it; that on or about the ____ day of _____, 189_, she deposited the further sum of $800 in her own name and to her sole account and benefit, which defendant so accepted; that said money was her sole separate estate, and that same was subject to her personal check and order, and hers only; that plaintiff had given some small checks, for which the bank is entitled to credit; that she cannot state the dates nor the amounts of the said checks, but that defendants had a full record thereof; that a very large portion of the sum so deposited has never been checked out or otherwise withdrawn by her, nor by any one else authorized by her; that there now remains due her between $4,000 and $5,000 of said deposits, for which said bank has never accounted to her. She further alleged that defendant Phillips claims to have paid out certain sums on checks which, although not signed by plaintiff, he claims that she is responsible for, and for which he claims that credit must be allowed as against said deposits. She denies that she is responsible for said checks, and says they were not executed by her, nor by any one authorized by her; that she never received the proceeds of the same, or any part thereof; that the bank is not entitled to credit for said checks; that defendants well knew the moneys deposited wereher separate estate; and that payment made to any person other than herself or on her individual check would be illegal, invalid, and a conversion pro tanto of her funds. She alleged a demand upon the bank, and its refusal to comply. She also alleged that Phillips is liable by reason of his negligence and breach of duty in payment of checks not drawn by her. Plaintiff, as a further cause of action, alleged that she was the widow of J. W. Coleman, who died, intestate, in Ellis county, Tex., on or about September 23, 1893; that at his death he was indebted to her in the sum of $2,500, and that, as his widow, she is entitled to his estate; that her husband was a depositor in the bank, and that the bank was indebted to him at the time of his death in a large sum, the exact amount of which she is unable to state, but largely more than $500, the same being community property of herself and said Coleman; that Phillips claims that all of said deposits have been accounted for; that plaintiff cannot state the exact dates or amounts of such deposits, or whether any portion of same has been paid by the bank or Phillips since her husband's death; but she charges that no one has qualified as his administrator, and no one is authorized by law to receive the same, and that payments made by defendants were illegal and a conversion. Plaintiff alleges that a knowledge of the facts is in possession of defendants, and in order that plaintiff may be fully advised as to all the facts connected with said transactions, both as to her separate estate and the funds deposited by her said husband, and especially as to the liability of defendant Phillips, she asks that he be required to specially answer and state fully his connection therewith. She alleged a demand on defendants and their refusal to comply therewith. The prayer was for a discovery, and for a judgment for the amount found due her. There was also a prayer for general relief. To this petition defendants filed a general demurrer, and special demurrers (1) that plaintiff failed to state with certainty when and how much money she deposited with defendant bank; (2) that plaintiff failed to show that she had drawn any check the payment of which had been refused; (3) that the petition shows she was a married woman prior to September 23, 1893, and does not allege that her husband did not, on proper checks, draw out all moneys deposited by her, nor does the petition show any facts which would deny the right of the husband to draw out money deposited in plaintiff's name. Defendants answered by a general denial and special pleadings not here necessary to set out. It did admit deposits in the name of plaintiff, aggregating $5,165.17. Plaintiff filed a supplemental petition, consisting of a general denial of the matter set out in the answer, and other special matters not here necessary to state. The exceptions to plaintiff's petition were sustained by the court; and, plaintiff having failed to amend, the cause was dismissed, to which action of the court plaintiff excepted, and has perfected her appeal to this court.

Lancaster, Beall & Gammon and Seay, Seay & Seay, for appellant. M. B. Templeton, for appellees.

BOOKHOUT, J. (after stating the facts).

Was there error in sustaining the exceptions to plaintiff's petition? Counsel for appellees contend that this question should be determined by the allegations contained in the original petition, and that the petition can derive no aid from the averments contained in the supplemental petition. If the original petition was sufficient when tested by the above exceptions, the judgment of the court below must be reversed. We have only set out what, in our opinion, were the material allegations of the petition. The petition contained all the formal averments of a bill of discovery in chancery, and contained a prayer for discovery. We have no such form of action in Texas. Love v. Keowne, 58 Tex. 191. If the petition alleges sufficient matters to form the basis of a recovery, the unnecessary matters set out therein should be treated as surplusage. The petition does allege a deposit by the plaintiff of moneys in the defendant bank in her own name, the same being her separate estate, and not to be checked out by any other person,—all of which was known to defendants,—and which they so received on deposit. The petition alleges that she has only given some small checks, and that there is between $4,000 and $5,000 of said moneys still in the bank. It alleges that Phillips, the cashier, claims to have paid out certain sums on checks not signed by her,...