Columbia Nat. Bank v. German Nat. Bank

• Court: Nebraska Supreme Court
• Writing for the Court: HARRISON
• Citation: Columbia Nat. Bank v. German Nat. Bank, 56 Neb. 803, 77 N.W. 346 (Neb. 1898)
• Decision Date: 08 December 1898
• Parties: COLUMBIA NAT. BANK v. GERMAN NAT. BANK.

56 Neb. 803

77 N.W. 346

COLUMBIA NAT. BANK

v.GERMAN NAT. BANK.

Supreme Court of Nebraska.

Dec. 8, 1898.

Syllabus by the Court.

1. “Testimony” and “evidence” are not synonymous terms; the latter is the generic term, and the former applicable to a species or kind of evidence.

2. If a bill of exceptions, which purports to contain all the evidence, is submitted to the adverse party for examination and amendment, and he returns it with an indorsement that he has no amendments to propose, it will be presumed to contain all the evidence. Cattle v. Haddox, 14 N. W. 803, 14 Neb. 59.

3. The use of the word “testimony” for “evidence,” in the certificate of the trial judge in the allowance of a bill of exceptions, if the meaning is obvious, or it is clear that the latter is intended, will not render the document inoperative.

4. A check upon a bank by a depositor operates a transfer of its amount to the payee if on deposit at the time of presentation, and the payee or holder may, on refusal of payment, maintain a suit on the instrument for the recovery of its stated sum.

5. As against the holder of a check against an account of a depositor, the bank of deposit may not apply the amount of the account to the payment of the indebtedness of the depositor to the bank which is not yet due, although the depositor may be insolvent.

6. Two defenses irreconcilably inconsistent may not be enforced, and the position assumed by the party prior to the suit relative to the facts and circumstances involved in the transactions drawn into question will prevail.

Error to district court, Lancaster county; Tibbets, Judge.

Action by the Columbia National Bank against the German National Bank. Judgment for defendant, and plaintiff brings error. Reversed.J. H. Broady and E. E. Brown, for plaintiff in error.

N. C. Abbott and Abbott, Selleck & Lane, for defendant in error.

HARRISON, C. J.

On June 2, 1893, the State Bank of Courtland was engaged in the business suggested by its name, and at the place thereby indicated, and in the course of such business drew and forwarded an order or a check on the German National Bank of Lincoln in favor of “J. H. McClay, Cashier,” he being such officer of the Columbia National Bank of Lincoln, for the sum of $898, and inclosed the same in an envelope addressed, “Columbia National Bank, Lincoln, Nebraska,”and mailed the package. On June 3d, it did likewise in relation to an order or check similar in form and substance in the material portions except amount, which was $3.88. The instruments, or checks we may call them,--for, whatever may be the proper technical designation, they were, in effect, checks, and to be considered as such (Bull v. Bank, 123 U. S. 109, 8 Sup. Ct. 62),--were received through the mail by the Columbia National Bank on June 7, 1893, and were, in the morning of the day of reception, presented to the drawee for payment, which was refused. The Bank of Courtland had an account with the German National Bank, and on the morning of June 7, 1893, there was to the credit of the former the sum of $983, which was subject to check. At the close of business on June 6, 1893, the Bank of Courtland suspended, and passed into the hands of a receiver, who afterwards continued in possession for the sole purpose of adjustment of its affairs. The Bank of Courtland was a debtor of the German National Bank, the indebtedness being evidenced by promissory notes which were payable on dates subsequent to June 7, 1893, or they were not then due, but on that date the amount which was shown by the open account in favor of the Bank of Courtland was by the German National Bank credited as a payment on one of the notes to which we have just referred, and the account balanced or closed. In this, an action by the Columbia National Bank against the German National Bank to recover the amount of the two checks sent it by the bank at Courtland, the defendant was accorded a judgment, to reverse which the plaintiff has prosecuted error proceedings to this court.

What may not be inaptly termed a preliminary question, which has its origin in the condition of the record as presented, is raised and urged for the defendant. The certificate of the trial judge of the allowance of the bill of exceptions recites that the document contains “all the testimony adduced or offered on the hearing of the” cause, and in other portions of its statements the reference in each is to “testimony.” It is of this it is objected that it is insufficient, inasmuch as testimony means but a part of the evidence, and the certificate should show that all the evidence was included in the bill of exceptions. It is incontestably true that “testimony” and “evidence” are not synonymous terms; that testimony is but a kind or species of evidence; that the former is, in a trial, the portion of the latter which may be given orally by witnesses; that the latter is inclusive of the testimony of witnesses, documents, etc.; that “evidence” is the generic term (Printing Co. v. Morss, 60 Ind. 153); and if we were confined to the certificate, and could look no further, it might be fatal to ...