Fourth Nat. Bank v. Gainesville Nat. Bank
| Decision Date | 07 January 1936 |
| Docket Number | No. 7861.,7861. |
| Parties | FOURTH NAT. BANK IN WICHITA, KAN., v. GAINESVILLE NAT. BANK IN GAINESVILLE et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul T. McMahon and Joseph J. Eckford, both of Dallas, Tex., for appellant.
Murphy & Murphy, of Gainesville, Robt. E. Cofer and John D. Cofer, both of Austin, Tex., and J. P. Dreibelbis, of Dallas, Tex., for appellees.
Before SIBLEY and HUTCHESON, Circuit Judges, and STRUM, District Judge.
In a suit by appellant against the appellees on their respective guaranties of prior indorsements on a certain check drawn on appellant by one of its customers, each side moved for an instructed verdict, and the judge — no one objecting — discharged the jury and later rendered judgment for the defendants. On appeal therefrom, error is assigned to the entering of judgment for appellees instead of for appellant, and to the admission of certain evidence tending to show that the indorsement of the payee on the check was not a forgery, but was made by the person to whom the check was issued.
Appellees say that jury was waived and the case submitted to the judge under 28 U.S.C.A. § 773, and that the question of the sufficiency of the evidence to support the judgment has not been properly saved for review. The record does not show any stipulation to waive a jury either oral or written, but the judgment recites: "Thereupon all parties having moved for an instructed verdict it is the opinion of the Court that the cause should be withdrawn from the jury and the jury discharged from the further consideration of the case, and it is so ordered and the jury discharged." A bill of exceptions, certified to contain all the evidence and the rulings of the court, also recites the motions for instructed verdict, the discharge of the jury and the judgment for defendants to which exception was taken by plaintiff. While no exception was taken to the discharge of the jury so that any irregularity of practice therein is waived, we are of opinion that the question of law whether the evidence authorized a verdict or judgment for defendants or demanded one for plaintiff was made to the district court and is sufficiently presented for review in this court.
The evidence shows without conflict that on October 26, 1926, Monarch Loan Company, a depositor with appellant Fourth National Bank in Wichita, Kan., drew a check for $8,000 payable to the order of A. J. Allen and mailed it to the drawer's correspondent, J. R. London, in Gainesville, Tex., as a loan to be made to Allen on a mortgage submitted by London. London, who was a customer of the First National Bank of Gainesville, brought to that bank a man whom he introduced as A. J. Allen and who indorsed and deposited the check, giving the bank a depositor's signature card. The $8,000 was subsequently checked out on the same signature, A. J. Allen. First National Bank of Gainesville indorsed the check "Pay to the order of any bank or banker, all prior indorsements guaranteed," and it passed through the other appellee banks who similarly indorsed it, and was finally presented to and paid by the drawee bank and charged to the account of Monarch Loan Company. It later developed that London was sending in fraudulent loan applications and the mortgage signed A. J. Allen was on land belonging to others. Allen has been sought for but has not been found. Monarch Loan Company took the position that the indorsement on the check of A. J. Allen was a forgery and refused to acknowledge the check as rightly paid, and sued Fourth National Bank in Kansas. That bank notified each indorsing bank of the situation and sent the check back to them, but they all declined it and insisted that the indorsement was genuine. Fourth National Bank, by notices, sought to vouch them into the suit in Kansas to defend the Allen indorsement. The Gainesville Bank, refusing to recognize the vouchment, yet under stipulation against any prejudice therefrom did assist in one of two trials and did promise in writing to bear part of the attorney's fees and expenses of the defense. The matter was fought through the Supreme Court of Kansas (Kansas City Title & Trust Co. v. Fourth Nat. Bank in Wichita, 135 Kan. 414, 10 P.(2d) 896, 87 A.L.R....
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