Dietz v. Lymer, 351.

• Decision Date: 07 May 1894
• Docket Number: 351.
• Citation: 61 F. 792
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: DIETZ v. LYMER.

61 F. 792

DIETZ v. LYMER.

No. 351.

United States Court of Appeals, Eighth Circuit.

May 7, 1894

This was a suit brought by the receiver of the City National Bank of Hastings, Neb., against Charles N. Dietz, one of its depositors, to recover a balance of $2,237.78, which was alleged to be due and owing to the bank. Attached to the petition as an exhibit was an itemized account of the transactions between the parties, which showed an overdraft by the depositor to the amount last above stated.

The defendant filed an answer to the petition, in which he denied that he was indebted to the bank in the sum claimed, or in any sum whatever. The defendant further pleaded that his business transactions with the City National Bank had been conducted by and through an agent of his by the name of Elsemore; only had authority to collect money for and in behalf of the defendant, which had been realized by the sale of lumber belonging to the defendant, and authority to deposit the same in said bank after paying certain incidental expenses, and to remit the moneys so collected and deposited to the defendant, by checks drawn on said bank. The answer further charged, in substance, that the bank had full knowledge of the limited authority of the defendant's agent; and that, notwithstanding such knowledge, it discounted many notes which were by said agent offered for discount, some of which notes had been received in payment for lumber belonging to the defendant, and were indorsed by said Elsemore in the name of the defendant, and others of which were signed by Elsemore in the name of the defendant and as his agent. It was further alleged that the bank paid many checks which were drawn on said account by Elsemore for purposes wholly foreign to the defendant's business; and that, by means of such unauthorized transactions, the bank had enabled the defendant's agent to convert to his own use many thousands of dollars which were deposited to the credit of the defendant in said bank. The answer also averred that the pretended statement of account between the bank and the defendant, which was filed as an exhibit, was erroneous in many respects, for the reason that many debit and credit items had been omitted therefrom.

Pursuant to a motion filed in behalf of the plaintiff, the circuit court ordered the defendant to make his answer, in some respects, more definite and certain; but this order appears to have been ignored by the defendant's counsel, as no amended pleading was filed in obedience to said order. Subsequently the court sustained a motion of the plaintiff to strike out certain designated portions of the aforesaid answer which it had previously held to be indefinite and uncertain. At a latter day, and without further pleadings the case was committed to a referee for trial under the following order of reference:

'On this 15th day of November, A.D. 1892, the parties to this cause, by their respective counsel, in open court consenting thereto, it is ordered by the court that this cause be, and the same is hereby, referred to Eleazer Wakeley, who is hereby appointed referee, and required to proceed as expeditiously as possible to take the evidence and find the facts at issue, and report the same, together with his conclusions of law thereon, to the court. Said referee shall fix the time and place of hearing, and give to each party, or to counsel for the party, ten days' notice thereof; and said referee shall have power to issue compulsory process for the attendance of witnesses, sign any true bill of exceptions, and make ruling and orders in the case, and exercise all of the powers that might be made and exercised by this court at any stage of the case, and shall give to each party five days' notice of the filing of his report herein.

'(Signed)

Elmer S. Dundy, Judge.'

The referee is due time filed his report, containing an elaborate finding of facts and a single conclusion of law, wherein he recommended that the plaintiff's action should be dismissed. After the report had been filed, the defendant asked leave to file an amended answer, which leave was granted, on condition that the defendant pay all the costs that had accrued since the entry of a previous order granting leave to the defendant to file an amended answer. The defendant did not avail himself of the leave to amend his answer on the condition last stated. Thereafter the case came on to be heard in the circuit court upon exceptions to the referee's report, which appear to have been taken by both parties; and, on the hearing...