Lennan v. Pollock State Bank

• Decision Date: 13 February 1907
• Parties: C. E. LENNAN, Plaintiff and, v. POLLOCK STATE BANK Defendant, and J. J. Fenelon, Administrator of William Elgar, deceased., Defendant and appellant.
• Court: South Dakota Supreme Court

21 S.D. 511

110 N.W. 834

C. E. LENNAN, Plaintiff and,

v.

POLLOCK STATE BANK Defendant, and J. J. Fenelon, Administrator of William Elgar, deceased., Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Campbell County, SD Hon. Loring E. Gaffy, Judge Reversed Wishek & Guy and Taubman, Williamson & Herreid Attorneys for appellant. J. H. Perry Attorneys for respondent. Opinion filed February 13, 1907

HANEY, J.

After this action was commenced against the Pollock State Bank, J. J. Fenelon, as administrator of the estate of William Elgar, deceased, was made a party defendant. A trial by the court resulted in a judgment against the administrator for the amount claimed and a dismissal as to the bank. From this judgment, and an order denying his application for a new trial, the administrator appealed.

The allegations of the first amended complaint are substantially as follows:

(1) That the defendant bank is a corporation created and existing under the laws of this state;

(2) that during the year 1902 the plaintiff deposited with the bank divers sums of money, aggregating $1,590.10, and that before this action was commenced plaintiff demanded the sum of the bank and it refused to pay the same;

(3) “that J. J. Fenelon was on the 2d day of February, 1903, appointed by the county court in and for said county the administrator of the estate of William Elgar, deceased, and that said J. J. Fenelon as such administrator claims the said money as belonging to said estate, but which claim of said J. J. Fenelon, as administrator aforesaid, is without right, and the said J. J. Fenelon, who is also the cashier of said Pollock State Bank, claims to hold said money for the said estate of William Elgar, but which claim is without right, and the said estate of William Elgar, deceased, has no right, title, or interest in and to said money, and if the said Pollock State Bank has turned over said money to the said J. J. Fenelon as administrator aforesaid, it was not authorized so to do.”

The administrator’s answer denies every allegation of the complaint not “specifically admitted, qualified, or denied.” It alleges that in the month of June, 1902, the plaintiff made and entered into a certain contract in writing with one William Elgar, wherein and whereby said William Elgar agreed to sell and the said plaintiff agreed to purchase, among other lands described in said contract, the S. E. ¼ of section 34, township 129 N., of range 76, in Emmons county, N. D.; that thereafter the said plaintiff deposited with the Pollock State Bank the sum of $1,590.10, to be paid to the said William Elgar upon the delivery to the said bank of a warranty deed to the above-described premises, to be by said bank turned over to plaintiff on demand; that in pursuance of said contract the said William Elgar did deliver and deposit with the said bank a deed of warranty to the above-described land, and received from said bank the said sum of $1,590.10, so deposited; that since the execution and delivery of said deed of warranty as aforesaid, and the payment of said sum of money as aforesaid, the said William Elgar died, and this defendant J. J. Fenelon was duly appointed administrator of the estate of the said William Elgar, deceased, and now is the administrator of said estate; that the contract of sale aforesaid between the plaintiff and the said William Elgar has been in all things complied with on the part of the said William Elgar, and a deed of warranty given of the premises and delivered, and the purchase money has been paid by the said ...