Hartford Acc. & Indem. Co. v. Colorado Nat. Bank of Denver
| Decision Date | 31 December 1934 |
| Docket Number | 13422. |
| Citation | 40 P.2d 254,96 Colo. 127 |
| Parties | HARTFORD ACCIDENT & INDEMNITY CO. v. COLORADO NAT. BANK OF DENVER. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, City and County of Denver; James C Starkweather, Judge.
Action by the Hartford Accident & Indemnity Company against the Colorado National Bank of Denver. Judgment of dismissal, and plaintiff brings error.
Affirmed.
Webster & Drath, of Denver, for plaintiff in error.
Bartels Blood & Bancroft and Walter W. Blood, all of Denver, for defendant in error.
Plaintiff in error was plaintiff in the trial court; in this opinion we will refer to it as the indemnity company, and to defendant in error as the bank.
The indemnity company had executed a surety insurance contract as surety for the Prey Bros. Livestock Company, herein called the commission company, insuring to all shippers the payment of such proceeds as would be due them from the sale of live stock consigned to the commission company. In July, 1931 various shippers were not paid for such shipments by the commission company and the amounts due them were in turn paid by the indemnity company under its surety contract. The indemnity company, claiming that the bank had taken the proceeds due such shippers and deposited by the commission company for the liquidation of indebtedness due the bank from the commission company, brought sult against the bank and sought to be subrogated against the bank to the rights and remedies of the shippers.
By a lengthy complaint, the indemnity company alleged in detail transactions between the bank and the commission company relating back as far as the year 1910. The bank moved to strike certain portions of the complaint, and much of it was ordered stricken. The complaint, being amended, was again subjected to a motion to strike. The court sustained the motion in part, but allowed general allegations concerning banking relations between the commission company and the bank between the years 1910 and July 31, 1931, also as to the knowledge of the bank of the particular business of the commission company as a depositor and the deposit of the commission company's funds in the checking account to remain in the amended complaint. The indemnity company did not stand on its complaint as amended, and the bank was required to answer. The indemnity company filed its replication, and, as the bank contends, attempted to reallege the matter stricken from the complaint and its amendment. The bank successfully moved to strike such from the replication. The indemnity company then refused to proceed further, the bank moved for dismissal, and the motion was sustained. Such a judgment is final as to every issue that could have been tried in the case. There was an issue of fact with no evidence and the judgment properly went against the indemnity company which had the burden of proof.
This case stands upon the pleadings. The indemnity company assigns 21 alleged errors, 15 of which relate to the striking of portions of its amended complaint. It did not stand upon these rulings. The bank was required to, and did, answer. The indemnity company filed its replication, and, in thus proceeding further, it waived any error in the sustaining of the motions to strike, under the long-settled rule in this state. Four of the remaining assignments of error relate to the court's action in sustaining motions to strike parts of the replication apparently based upon the ground that the stricken portions were simply a repetition of the allegations eliminated from the amended complaint. If the indemnity company had a cause of action against the bank, it was necessary only to plead the nature of the business of the commission company, its checking account with the bank, knowledge by the bank of the nature of the commission company's business, that funds of shippers were placed in the commission company's account, and the appropriation of such funds by the bank in payment of an indebtedness of the commission company to the bank. Thus pleaded, the case would have been brought within the rule laid down in Union Stock-Yards Nat. Bank v. Gillespie, 137 U.S. 411, 11 S.Ct. 118, 34 L.Ed. 724, relied upon by the indemnity company, and which seems to be in accordance with the...
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