Ida Cnty. Sav. Bank v. Seidensticker

• Decision Date: 20 December 1902
• Citation: 92 N.W. 862
• Parties: IDA COUNTY SAV. BANK v. SEIDENSTICKER ET AL.
• Court: Iowa Supreme Court

92 N.W. 862

IDA COUNTY SAV. BANK

v.SEIDENSTICKER ET AL.

Supreme Court of Iowa.

Dec. 20, 1902.

Appeal from district court, Ida county; Z. A. Church, Judge.

Action upon a bond given to plaintiff bank by defendants; Seidensticker being named as principal therein, and Knepper as surety, and the same being given pursuant to an appointment of said Seidensticker as cashier of said bank. Seidensticker made no appearance in the action. At the close of all the evidence, the court, on motion, directed a verdict in favor of plaintiff in the sum of $10,000. A motion for new trial was made by defendant Knepper and overruled, and judgment entered as against both defendants. Defendant Knepper appeals. Affirmed.T. F. Bevington and J. L. Kennedy, for appellant.

Wright, Call & Hubbard, Chas. E. Warren, and W. E. Johnston, for appellee.

BISHOP, J.

1. Before answer, the defendant, by motion, demanded a change of place of trial from Ida county to Iowa county. His motion, and affidavits attached, set forth that at the time of the commencement of the action Ida county was not the place of residence of either defendant, that he then resided in Iowa county, and that Seidensticker resided, if at any place, in Chicago, Ill. The motion was overruled, and such ruling is assigned as error. The statute provides that personal actions must be brought in a county in which some of the defendants actually reside. Code, § 3501. If an action is brought in a wrong county, the defendant, before answer, may demand a change of place of trial to the proper county. Code, § 3504. That appellant resided in Iowa county was conceded. The contention between the parties turns wholly upon the question whether Seidensticker was a resident of Ida county at the time the action was commenced. Many affidavits, papers, and letters were filed by each of the parties in support of the motion, on the one hand, and in resistance thereto, on the other. In addition, and at the time of the hearing before the court, each of the parties introduced oral evidence at considerable length. We cannot undertake to set out even a synopsis of the showing and counter showing made. Suffice it to say, it appears from the record that Seidensticker had resided in Ida county for several years. After his trouble with the plaintiff bank arose, he went away, going first to the Pacific Coast, and thence from place to place, back to Chicago. His stay at each stopping place was limited to a few days. Shortly after his arrival in Chicago, the president of the plaintiff bank went in to see him, and, it seems, prevailed upon him to return to Ida county and make an effort to get his affairs settled up. While in Ida county the original notice of this action was presented to him, and he indorsed thereon and signed an acceptance of service. Much stress is placed upon the statement of said defendant to the effect that some two weeks after first leaving Ida county he formed a resolution never to return there to live, and upon his declaration to the effect that he no longer claimed said county as his home. The statements of a defendant as to the intention with which he left his usual place of residence, or as to the facts with reference thereto, are not conclusive in determining the fact of residence, in connection with applications of the character involved in the case we have before us. Stevens v. Ellsworth (Iowa) 63 N. W. 683. That said Seidensticker had acquired an actual residence elsewhere is not made to satisfactorily appear. Opposed to that idea, there is much evidence in the record tending to show that he still regarded Ida county as his home. Much of the evidence on the subject was given orally by witnesses called in open court, and we are disposed to believe the trial judge was in much better position than are we to determine the question of fact. In passing, we may say that we find nothing in the record to warrant the assertion that any improper means were resorted to in order to induce the defendant to return to the state where service upon him might be obtained. His acceptance of service was voluntary, and he made no effort to prevent judgment being taken against him pursuant to such service. We conclude that there was no error in overruling the motion.

2. Defendant filed a motion asking that plaintiff be required to make its petition more specific in certain respects. This motion was overruled. Thereafter the defendant answered, and the case proceeded to trial. In Hurd v. Ladner, 110 Iowa, 263, 81 N. W. 470, we held that, the defendant having answered after an adverse ruling upon a similar motion, the error involved in such ruling was waived.

3. The answer of defendant Knepper was filed in term time. Thereafter the plaintiff filed a motion for continuance, supported by affidavit; one of the grounds thereof being the illness of J. T. Hallam, president of the bank. From the affidavit it is made to appear that all the matters involved in this action transpired during the time said Hallam was president of the bank, and that no other officer of the bank had knowledge thereof, or is familiar with the matters alleged in the pleadings. It is also said that another action is pending in the same court, in which is involved the question of the liability of the plaintiff bank for the sum of $1,000; that, if such liability shall be established, the claim of plaintiff against these defendants, for reasons stated, will be increased in a corresponding sum, and therefore such action should be first tried. The defendant filed objections, the general tenor thereof being that the requirements of the statute governing the matter of applications for continuance on the ground of absence of evidence had not been complied with. It is manifest from a bare inspection of the pleadings that it would be a practical impossibility to embrace within the limits of an affidavit all that the plaintiff might reasonably expect to prove by its president and managing officer. The transactions cover a period of several years, and they are too numerous to mention. So, too, because of his connection with the bank, Hallam, in a sense, occupied the relation of party plaintiff to the action. His serious illness does not seem to have been questioned. In overruling the objections, it is evident that the court regarded the motion as one based upon a sufficient showing of meritorious facts to warrant a continuance under the provisions of section 3663 of the Code. There was no abuse of discretion in so holding. At the succeeding term of court a further motion for continuance was made, based upon the continued illness of Hallam, and an affidavit of merits was presented therewith. The record states that objections were filed by defendant, but the same are not set forth. The motion was sustained. It was meritorious upon its face, and we must conclude that the ruling was warranted.

4. From the record it appears that the appellee is a savings bank,--organized as such under the laws of this state on May 30, 1893. The statute in relation to savings banks came into existence as chapter 60, Laws 1874. By section 5 of said act, among the enumerated powers of such banks, it is provided: “Fourth. To appoint such officers, agents and servants, as the business of the corporation shall require, to define their powers, prescribe their duties, and fix their compensation, and to require of them such security as may be thought proper for the fulfillment of their duties. * * * Sixth. To make by-laws, not inconsistent with the laws of this state, for the organization of the company, and the management of its property, the regulation of its affairs, * * * and for carrying on all kinds of business within the objects and purposes of the company.” By section 6 of said act, as amended, it is provided that: “The business and property of such savings banks shall be managed by a board of directors or trustees. * * * At their first meeting, and as often thereafter as their by-laws shall require, the directors or trustees shall elect, from their number, a president and one or more vice-presidents for the ensuing year; and shall appoint a treasurer or cashier, and such other subordinate officers, agents, and servants as may be required, who shall hold their offices at the pleasure of the board, and who shall give such security for the faithful performance of their duties as may be required by the by-laws.” By-laws were adopted by said bank at the time of its organization, the material provisions of which are as follows: “Art. 3. The business and affairs of the bank shall be managed by a board of five directors. * * * At all meetings of the board, the president shall preside, and a record of the proceedings shall be kept by the cashier in a book provided for that purpose. Art. 4. The board * * * shall from their number elect one president, and shall also appoint one cashier. Art. 8. The president, cashier and employés, shall give bonds in such sums with sureties as the board shall approve. * * * And the board may at any time by a vote of a majority of all its members remove from office said officers or employés, or any of them, and appoint others in their place.” At the first meeting of the board of directors of said bank, held May 30, 1893, J. T. Hallam was elected president, and the defendant Seidensticker cashier. The minutes of the meeting of the board, kept by Seidensticker, show entries as follows: “Motion made and seconded that Chas. J. Seidensticker be appointed cashier. Motion unanimously carried. Chas. J. Seidensticker appointed cashier until the next annual election. * * * Moved and seconded that * * * the cashier give bond in the sum of $10,000, to be approved by the board of directors.” It seems that said Seidensticker at once entered upon his duties as cashier, and on June 27, 1893, gave to the bank the bond here in suit; the same being executed by him as principal, and by the appellant, Knepper, as surety; the penal sum named therein...