Dobyns v. Bank of Ava

• Decision Date: 12 October 1936
• Docket Number: No. 5691.,5691.
• Citation: 99 S.W.2d 495
• Parties: DOBYNS, City Treasurer, v. BANK OF AVA et al.
• Court: Missouri Court of Appeals

99 S.W.2d 495

DOBYNS, City Treasurer, v. BANK OF AVA et al.

No. 5691.

Springfield Court of Appeals. Missouri.

October 12, 1936.

Rehearing Denied January 2, 1937.

Appeal from Circuit Court, Douglas County; Robert L. Gideon, Judge.

"Not to be published in State Reports."

Action by V. A. Dobyns, Treasurer of City of Ava, against the Bank of Ava, a corporation, and O. H. Moberly, State Commissioner of Finance. From the judgment, plaintiff appeals.

Reversed and remanded, with directions.

Lz Banta, of Ava, for appellant.

Farrington & Curtis, of Springfield, for respondents.

ALLEN, Presiding Judge.

This cause was instituted in the circuit court of Douglas county by the filing of proof of claim of the Bank of Ava, Ava, Mo., which proof of claim was as follows:

"V. A. Dobyns, Treasurer of City of Ava, a corp., of lawful age, being duly sworn upon his oath, states that there is due the City of Ava from the Bank of Ava, Ava, Missouri, Fourteen Hundred Dollars and no cents, being the balance due on October 23, 1930, which amount is now due and unpaid, on the following claim, to-wit: Balance due on open account subject to check $1400.00.

"This is a preferred claim as the money belongs to the water works fund of the City of Ava, and the Bank of Ava was not selected as a depository, for such fund by the City Council and never qualified as such by giving a bond therefor. Total $1,400.00.

"Affiant further states that he is not indebted to said bank in any sum and that said bank is not entitled to any credit or offset against this claim. Claimant prays that this claim be approved by the Commissioner of Finance in charge of said bank, conformable to section 11719, R.S. Mo.1919 [Mo.St.Ann. § 5336, p. 7560].

                  "[Signed] City Water Works
                  "V. A. Dobyns, Treasurer, Claimant."
                

The case was tried upon the following stipulation:

"Mr. Banta: It is stipulated and agreed by and between the parties herein that the City of Ava is a municipal corporation, organized and existing under the laws of the State of Missouri, as a city of the Fourth Class, and, at the time the Bank of Ava closed its doors and went into the hands of the State Finance Department on the 23rd day of October, 1930 the said City of Ava had on deposit in said bank the sum of $1,400.00 which was derived from the sale of City Water Works Bonds, and was on deposit in said bank in the name of City Water Works, V. A. Dobyns, Treasurer, and, that V. A. Dobyns was the Treasurer, and that said bank had never been designated as a depository for the City of Ava.

"Mr. Curtis: It is further stipulated and agreed that the deposit of $1,400.00 was made by V. A. Dobyns, Treasurer. It is further stipulated and agreed the deposit for which preference was asked was deposited in the Bank of Ava on the 12th day of May, 1930, by V. A. Dobyns, the Treasurer of the City of Ava.

"Mr. Banta: We offer to prove by V. A. Dobyns that he had never given a bond as Treasurer of the City of Ava for the safe keeping of the funds here in question.

"Mr. Curtis: We object for the reason it does not prove an issue in the case. We object for the further reason the question of whether or not the Treasurer had given bond to the City of Ava would not be germane or material to the preference asked.

"The Court: Objection sustained.

"The Plaintiff, by his counsel, excepts to the ruling of the court.

"Plaintiff rests.

"Defendant rests."

Trial was had, in this cause before Hon. Robert L. Gideon, judge of the circuit court of Douglas county, on the 8th day of May, 1931, on which date the case was by the court continued, pending decision until the regular September term of the Douglas county circuit court, 1934, at which time the court found the issues for the defendant.

Plaintiff filed motion for new trial on the 19th day of September, which motion was overruled, and the case comes to this court on appeal by plaintiff.

Plaintiff's motion for new trial was as follows:

"Comes the Plaintiff in the above entitled cause and moves the Court to set aside the verdict and judgment of the Court herein rendered and grant Plaintiff a new trial for the following reasons:

"1. Because the Court erred in rendering judgment for the defendant.

"2. Because the Court erred in failing to allow Plaintiff's demand as a preferred claim.

"3. Because under the law and the evidence Plaintiff's demand should have been allowed as a preferred claim.

"4. Because the judgment of the Court is for the wrong party."

The undisputed facts in the case are that on the 23d day of October, 1930, the Bank of Ava, a banking corporation, doing business at Ava, Mo., closed its doors and delivered its assets into the hands of the State Finance Department for the purpose of liquidation, as provided by law; that at the time said bank closed its doors the city of Ava had on deposit in said bank the sum of $1,400, which was derived from the sale of city waterworks bonds and that the same was on deposit in said bank in the name of "City Water Works, V. A. Dobyns, Treasurer"; that V. A. Dobyns was treasurer of the city of Ava and had never qualified as such by giving a bond therefor, and that the Bank of Ava had not been designated as a depository for such funds; that the city of Ava is a city of the fourth class, having a population of a little more than 1,000 and has a waterworks system, which is and was operating at the beginning and during the progress of this lawsuit; that the funds herein mentioned were deposited the 12th day of May, 1930, by V. A. Dobyns, treasurer of the city of Ava.

After the bank closed its doors and within the time provided by law, the plaintiff herein filed its claim for said funds, asking for a preference on the ground that the Bank of Ava had not been designated as a depository for the waterworks fund of the city of Ava, nor had it qualified as such by giving a bond as required by law.

Appellant assigns as error: (1) That "The court erred in rendering judgment for the defendant"; (2) that "The Court erred in not allowing plaintiff's claim as a preference."

Appellant asserts that there must be a depository selected for the waterworks funds for cities of the fourth class, and cites in support thereof R.S.Mo.1929, § 7676 (Mo.St.Ann. § 7676, p. 6046). Section 7676 says that "there shall be selected a depository for the funds of the waterworks system in the manner as provided by article 4 of chapter...