Lafayette-South Side Bank & Trust Co. v. Siefert

• Decision Date: 02 July 1929
• Citation: 18 S.W.2d 572,223 Mo.App. 431
• Parties: LAFAYETTE-SOUTH SIDE BANK & TRUST COMPANY, A CORPORATION, RESPONDENT, v. ALICE SIEFERT, EXECUTRIX OF THE WILL OF KATHARINA ROSE, AND EMMA DIPPEL, APPELLANTS. [*]
• Court: Missouri Court of Appeals

18 S.W.2d 572

223 Mo.App. 431

LAFAYETTE-SOUTH SIDE BANK & TRUST COMPANY, A CORPORATION, RESPONDENT, v. ALICE SIEFERT, EXECUTRIX OF THE WILL OF KATHARINA ROSE, AND EMMA DIPPEL, APPELLANTS. ^[*]

Court of Appeals of Missouri, St. Louis

July 2, 1929

Appeal from the Circuit Court of the City of St. Louis.--Hon. Erwin G. Ossing, Judge.

REVERSED.

Judgment reversed.

Ebenhoh & Johnson for appellant, Emma Dippel.

In the absence of a statute there is a presumption, at least, of joint tenancy and right of survivorship. Kennedy v McMurray, 146 P. 647; Miller v. Bank, 206 P 796; Trust Co. v. Grobel, 114 A. 353; O'Connor v. Dunnigan, 143 N.Y.S. 373; Ludwig v. Brunner, 169 N.W. 890; Hatsted v. Bank, 172 P. 613. However, we are concerned with the law of Missouri. The trial court erred in overruling the demurrer of defendant Emma Dippel, and erred in sustaining plaintiff's bill and finding same a proper bill of interpleader for the reason that sections 11779 and 11840, Revised Statutes of Missouri 1919, were in force and effect when the certificates of deposit in question were issued by plaintiff, were in force and effect when plaintiff's bill was filed, and when the orders of court were made. Section 11779 creates a deposit in any form, be it a savings account, checking account or certificate of deposit, made by any person in the name of such depositor and another person, and in form to be paid to either, or the survivor of them, a joint tenancy and right of survivorship and absolute ownership in the survivor, free from the claim of any other person. The latter part of said section, reciting that bank shall be discharged for all payments made on account of such deposit prior to the receipt of said bank of notice in writing signed by any one of such joint tenants not to pay such deposit in accordance with the terms thereof, implies that none other than joint tenants during lifetime of both have right to make demand. The question of demurrability to the bill of plaintiff depends on whether the question is one of law or one of fact, and under the statute of this State, and particularly sections 11779 and 11840 thereof, the right of survivorship is a matter of law. Defendant Emma Dippel's demurrer should have been sustained by the court, because plaintiff's bill shows on its face that the certificates of deposit were payable to Catherine Rose or Emma Dippel, either or the survivor, and that Emma Dippel was the survivor, making her the absolute owner thereof, under our law, and subject to the claim or demand of no one. Section 11840, Revised Statutes of Missouri 1919, is identical with section 11779 thereof, except that the words "trust company" are used in lieu of the word "bank." Mississippi Valley Trust Co. v. Smith et al., 9 S.W.2d 58. Plaintiff states in its bill that the certificates of deposit were issued to Catherine Rose. Plaintiff was the judge, at the time said certificates were issued, if Catherine Rose was intentional and intelligent. The transaction was accepted, acquiesced in and acknowledged by plaintiff, and plaintiff should have recognized the rights of the survivor without filing an interpleader suit. Commonwealth Trust Co. v. Reagan, 193 Mo.App. 290. Section 11779, R. S. 1919, was construed by the St. Louis Court of Appeals in Ball v. Mercantile Trust Co., 220 Mo.App. 1165, 1172 S.W. 415.

Frank X. Hiemenz for respondent.

(1) No appeal may be taken and no review may be had unless a final judgment or decree has been rendered in the cause. The St. Joe Terminal R. R. Co. v. The Hannibal & St. Joseph R. R. Co., 94 Mo. 535; Voorhis v. Western Union, etc., 59 Mo.App. 55; Spears v. Bond, 79 Mo. 465; Macke v. Byrd, 109 Mo. 487, 19 S.W. 70; Strickler v. Tracey, 66 Mo. 465; Walser v. Haley, 61 Mo. 445; Evans v. Russell, 61 Mo. 37; Nobles v. Spaulding, 51 Mo. 571; Lowe v. Frede, 258 Mo. 208, 167 S.W. 443; City of Plattsburg v. Allen, 84 Mo.App. 432; Rodgers v. Kallmeyer, 104 Mo.App. 137; Merchants Exchange v. Sessinghaus, 59 Mo.App. 106. (2) After a stakeholder has actually been forbidden by one of the claimants to pay over the fund to another, he is permitted to discharge himself by invoking the aid of the court, and is not required to exercise his discretion (as to who is entitled to the fund) at his peril. Smith v. Grand Lodge, etc., 124 Mo.App. 181, Supreme Council v. Palmer, 107 Mo.App. 157; Little v. St. Louis Union Trust Co., 197 Mo. 281; Hayden's Executers v. Marmaduke, 19 Mo. 403; Repetto v. Raggio, 201 Mo.App. 628, 213 S.W. 525; Sovereign Camp v. Wood, 100 Mo.App. 655, 75 S.W. 377. (3) Attorney's fee allowed the attorney for plaintiff in an interpleader suit is paid out of the fund, but may be taxed as costs against the unsuccessful interpleader. Sovereign Camp v. Wood, 100 Mo.App. 655, 75 S.W. 377; Supreme Council v. Palmer, 107 Mo.App. 157; Clay County Court v. Baker, 210 Mo.App. 65, 241 S.W. 447; Grooms v. Mullett, 133 Mo.App. 477; Glaser v. Priest, 29 Mo.App. 1; Franco-America, etc. v. Joy, 56 Mo.App. 433.

HAID, P. J. Becker and Nipper, JJ., concur.

OPINION

HAID, P. J.

This suit was instituted by the Lafayette-South Side Bank & Trust Company against Alice Siefert, Executrix of the will of Katharina Rose, and Emma Dippel. The petition alleged that the plaintiff's predecessor issued to Catherine Rose its two certificates of deposit in the sum of $ 1000 each, payable to Catherine Rose or Emma Dippel, either or the survivor, at maturity; it alleged that Catherine (or Katharina her correct name) died testate in July, 1927, and that Alice Siefert, Executrix of the will of Katharina Rose and Emma Dippel have both demanded payment of said certificates and each have notified plaintiff not to pay the same to the other; that the executrix claims the full amount of the certificates for the alleged reason that the money represented thereby is and was at all times the property of the deceased and that Emma Dippel had no interest therein whatsoever and that Emma Dippel demands payment of the sum according to the terms of the certificates; that plaintiff has no interest in the controversy; that it is obliged and obligated to pay the face value of said certificates to the person legally entitled thereto; that it cannot determine which of the demandents is legally entitled to the sum represented by the certificates and asks the court to relieve it of the burden of determining which one of the defendants is legally entitled thereto; that it be permitted to pay the amount of said certificates into the registry of the court and that the defendants be ordered and directed to interplead for such sum.

To this petition the defendant Emma Dippel filed a demurrer which demurrer was overruled by the court. Thereupon Emma Dippel filed her answer and subsequently Alice Siefert, Executrix of the will of Katharina Rose, filed her answer, each of the defendants admitting that it was claiming the fund. Thereupon the court made an order without hearing evidence, sustaining the bill of interpleader and ordered plaintiff to pay into the registry of the court the sum of $ 2000, plus interest thereon, less $ 200 attorneys fee allowed the plaintiff and ordered that thereupon the plaintiff stand discharged from further liability. The plaintiff paid the money into court and in turn its attorney was paid the fee of $ 200 allowed by the court. From the order thus sustaining the petition and discharging the plaintiff from further liability Emma Dippel has prosecuted this appeal. The appellee contends that this court is without jurisdiction because the order or judgment referred to is not such a final judgment or decree that an appeal may be prosecuted therefrom.

Section 1469, Revised Statutes 1919, provides: "Any party to a suit aggrieved by any judgment . . . from which an appeal is not prohibited by the Constitution, may take an appeal to a court having appellate jurisdiction" from certain orders mentioned in the statute "or from any final judgment in the case."

Is the order permitting the plaintiff to deposit the money in the registry of the court and discharging it from further liability such a final judgment that it may be appealed from? As we view the situation, an action of this character really involves two actions or litigations, one between the plaintiff and all the defendants as to whether they shall be required to interplead for the fund, and the other an action between the defendants, if the plaintiff's petition to require them to interplead is sustained. [Roselle v. Farmers' Bank of Norborne, 119 Mo. 84, 24 S.W. 744; Novinger Bank v. St. Louis Union Trust Co., 196 Mo.App. 335, 189 S.W. 826; 33 C. J. p. 446, sec. 28.]

As is said by the court in the case of Duke, Lennon & Co. v. Duke & Woods, 93 Mo.App. 244, "The subjects of these two litigations are wholly separate and distinct, and, therefore, require separate and distinct allegations and proofs. In such case the only decree that plaintiffs can have is that the defendants do interplead. When this is obtained, the plaintiff is altogether out of the suit, leaving the interpleading defendants alone to contest their conflicting claims. After the withdrawal of the plaintiff from the case, the controversy is then solely and exclusively carried on between the interpleaders claiming the fund."

The question here involved does not appear to have been directly decided, but we find four cases in this State in which appeals prosecuted from similar orders have been entertained and, therefore, by silence, at least, the court in each of those cases sustained the right to an appeal from such an order. [See Gee v. Leaver, 172 Mo.App. 191, 157 S.W 842; City of Brunswick v. People's Savings Bank, 194 Mo.App. 360, 190 S.W. 60; Bathgate v. Exchange Bank, 199 Mo.App. 583, 205 S.W. 875; Smith v. Grand Lodge, 124...