Harrington v. Inter-State Fidelity Building & Loan Ass'n
| Decision Date | 04 January 1937 |
| Docket Number | 5372 |
| Citation | 63 P.2d 577,91 Utah 74 |
| Parties | HARRINGTON v. INTER-STATE FIDELITY BUILDING & LOAN ASS'N (EVERITT et ux., Interveners) |
| Court | Utah Supreme Court |
Appeal from District Court, Third District, Salt Lake County; Nephi J. Bates, Judge.
Action by J. T. Harrington, administratrix of the estate of Delbert Richard Everitt, against the Inter-State Fidelity Building & Loan Association, wherein D. A. Everitt and wife intervened. From a judgment for defendant of no cause of action plaintiff appeals.
AFFIRMED.
White Wright & Arnovitz, of Salt Lake City, for appellant.
Backman & Backman, Stephens, Brayton & Lowe, and H. R. Boyer, all of Salt Lake City, for respondents.
MOFFAT, J., being disqualified, did not participate.
The plaintiff, who is the appellant here, as the administratrix of the estate of one Delbert Richard Everitt, deceased, brought this action against the Inter-State Fidelity Building & Loan Association, a corporation, defendant and respondent, to recover a judgment for the amount which she claimed to be due the estate of said deceased person upon a subscription contract for twenty shares of what is designated as Investors Guaranty Dividend stock of said corporation, predicating her right thereto upon the facts which she alleged and upon the statutes of this state relating to building and loan associations, particularly section 1104, Comp. Laws Utah 1917, which is the same as section 7-5-12, R. S. Utah 1933, which provides that upon the death of a stockholder of such a corporation, his legal representative shall be entitled to receive the full amount paid in by him upon all shares not borrowed upon or pledged to the corporation as collateral security, after certain membership or withdrawal fees and charges have been deducted.
The subscription contract in question was made between the defendant corporation and Delbert Richard Everitt, and the account was carried upon the books of the corporation in his name. His parents, nevertheless, upon his death, claimed the right to receive payment from the corporation of the amount that had been paid on the contract, basing their claim upon two grounds, namely: (1) That their son in his lifetime had given the certificate for the stock to them; and (2) that they and not their son had made all the payments which had been made upon the contract. Hence they claimed that the stock or the amount due thereon belonged to them and that they and not the plaintiff were entitled to receive payment thereof from the defendant. There had been some kind of certificate issued by the corporation to the son as evidence of his right to the twenty shares of stock when he should have paid for them according to the terms of his subscription contract. This certificate was in the possession of the parents when their son died, but it had never been indorsed by him. A short time after his death the parents presented the certificate to the corporation and demanded payment of the amount due on the contract. In compliance with this demand the corporation paid over to them the amount due, which was $ 403.24, but at the same time required them to furnish and they did furnish a bond by which they and their surety undertook and agreed to hold the corporation harmless in case it should thereafter be required to make payment on said shares to any other person.
In her amended complaint, the plaintiff, in addition to the necessary matters of inducement, and so forth, alleges: That under date of June 25, 1924, the defendant issued to Delbert R. Everitt, deceased, a certificate entitling him to the delivery of twenty shares of the capital stock of said corporation of the kind above mentioned, upon payment by him of $ 63.50 per share, or a total sum of $ 1,270, which he agreed to pay at the rate of $ 10 per month; that he commenced to pay the sum of $ 10 per month on the 25th day of June, 1924, and continued to pay the said sum of $ 10 per month each month until the 16th day of March, 1929, at which time he had paid to the defendant a total sum of $ 480; that said Delbert Richard Everitt died on March 30, 1929; that the certificate of stock hereinabove mentioned as the property of the decedent became the property of the estate of the decedent, and the plaintiff herein, as the administratrix of the estate of the decedent in and for the State of Utah, prosecutes this action to recover the withdrawal value of the said certificate of stock; that this plaintiff succeeded to the rights of the decedent, acquired under the terms of the said certificate of stock, which had not been pledged to the defendant as collateral security or borrowed upon by the decedent.
In due time the defendant filed an answer to the amended complaint, in which it admits that it issued the certificate above mentioned to the said Delbert Richard Everitt, alleges that on April 12, 1929, the cash surrender value of the said certificate was $ 403.24, and denies all of the other allegations of the amended complaint that are above set forth in substance. Further answering, the defendant, in paragraph 7 of its answer, alleges in substance: That Mr. and Mrs. D. A. Everitt, parents of the deceased, prior to April 13, 1929, made demand upon defendant for the payment to them of the withdrawal value of said certificate, claiming to be the owners of the same by reason of the facts above mentioned upon that subject; that the parents claim to be the owners of all moneys due; that the defendant is unable to determine the conflicting claims of the plaintiff and the parents to the money due under the said certificate; that a complete determination of the controversy cannot be had without the presence of the parents, who claim to have an interest in the subject-matter in question; and that the defendant believes they should be made parties to the action and should be required to set forth their claims to the fund in question, so that the whole matter may be adjudicated in one proceeding. The defendant therefore prays that the court order that the parents be made parties defendant to the action and that they be required to set forth the nature of their claims to said money; that the court determine the rights of the conflicting claimants; that the court direct the defendant as to its further actions and that the defendant be permitted thereafter to go hence with its costs; and for such other and further order as is meet and proper to permit of a full and complete adjudication with respect to the rights of the said conflicting claimants.
The trial court declined to order that the parents of the deceased be made parties defendant to the action, and upon motion of the plaintiff, ordered that paragraph 7 of the answer be stricken therefrom, on the ground that the allegations therein were sham and superfluous.
Thereupon the parents applied to the court for permission to intervene in the action. They supported their application by an affidavit in which they alleged: That they subscribed for said shares on behalf of their son; that they made all payments which had been made on account of said stock; that said stock was not given to their son as a gift; that on or about April 13, 1929, they withdrew from said building and loan association the proceeds of the said certificate of stock as the owners thereof; that they have an interest in the matter in litigation and in the success of the defendant in its defense to the plaintiff's cause of action; and that they will either gain or lose by the direct operation and effect of the judgment which will be rendered in this cause.
The trial court, over objection by the plaintiff, granted said application and permitted the parents to intervene. They did so by filing an answer to the amended complaint of the plaintiff, in which, after making certain admissions and denials, they alleged that they paid for the certificate of stock in question; that they made all payments which were made on account of said stock; that the money due on said stock was in truth and in fact their money; that said stock was never given or delivered to said Delbert Richard Everitt; and that because of the payments which had been made upon said stock by them, said deceased in his lifetime had agreed to assign and transfer said certificate to them. Their prayer is that the plaintiff take nothing by this action and that the complaint be dismissed and for their costs. To this answer of the interveners the plaintiff filed a reply in which she denies all of the affirmative allegations contained in said answer and alleges the furnishing of the undertaking as above mentioned to the defendant by the interveners.
The case was tried upon said pleadings to the court sitting without a jury. The court found that the parents of the deceased made all payments which were made, and that the deceased during his lifetime gave said certificate to them; and concluded as a matter of law that the defendant building and loan association was entitled to a judgment against the plaintiff of no cause of action. Judgment was entered accordingly, and the plaintiff appeals from the judgment. She makes five assignments of error, which will be disposed of in the order in which they are made.
The first assignment is that the court erred in making its order permitting the parents to intervene in the action.
Interventions are regulated by statute in this state. Section 104-3-24, R. S. Utah 1933, which is the same as section 6518, Comp. Laws Utah 1917, in force when this action was commenced, reads as follows:
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First Nat. Bank in Fort Lee v. Englewood Mut. Loan & Bldg. Ass'n
...held in it is complete without delivery of a certificate (Case, pp. 51, 52). In the case of Harrington v. Inter-State Fidelity Building & Loan Association, 1933, 91 Utah 74, 63 P.2d 577, the court, among other things, said [page 583]: "This certificate is not of the kind to which the Unifor......