Syllabus
by the Court.
Where
there is no evidence reasonably tending to support the
verdict, this court will, when the sufficiency of the
evidence is properly challenged, set the verdict aside.
Record
examined, and held, there is no evidence reasonably
tending to support the verdict, and the same cannot be
justified upon any hypothesis presented by the evidence.
Error
from District Court, Garvin County; F. B. Swank, Judge.
Action
by B. F. Cornelius against the Lindsay State Bank of Lindsay
Okl., and W. E. Mooney. Demurrer of defendant Mooney to
petition sustained, and judgment for plaintiff against
defendant Bank, its motion for a new trial denied, and it
brings error. Reversed and remanded, with directions.
JOHNSON
J.
This is
an appeal from the district court of Garvin county. B. F
Cornelius on February 22, 1915, commenced an action as
plaintiff against the Lindsay State Bank and W. E. Mooney as
defendants below, and for convenience the parties will be
hereinafter referred to as plaintiff and defendant as they
respectively appeared in the court below.
The
plaintiff's petition, omitting the caption, was as
follows:
"For cause of action against the defendants, plaintiff
alleges that on the days and dates hereinafter enumerated and
during the years 1913 and 1914 he made or caused to be made
various deposits of certain sums of money in said defendant
bank, for which he holds certificates of deposits issued to
him by defendant as follows, to wit: November 28, 1913, $28;
October 29, 1913, $10; November 29, 1913, $19.72; November
29, 1913, $26; February 26, 1914, $60; January 10, 1914,
$113; February 14, 1914, $453; January 17, 1914, $2,480.20;
February 7, 1914, $10.50; April 29, 1914, $32; December 31,
1914, $1,015-making total of $4,248.02. Copies of said
certificates of deposits are hereto attached marked Exhibit A
and prayed to be taken as a part of this petition.
Plaintiff avers that at divers times during the said years of
1913 and 1914 he checked out a portion of said $4,248.02,
leaving a balance in said bank at this date of $1,958.15, for
which sum he here sues and prays.
Plaintiff avers that on the 19th day of February, 1915, he
made legal demand upon said defendant bank for the payment of
said balance of $2,623.15, amount as amended, by and through
his attorneys, T. N. Robinett and E. W. Fagan, and that his
said attorneys presented on said date at the banking house of
said defendant bank and to the cashier of said bank, A. C.
Bickell, plaintiff's check for said amount of $1,958.15,
and payment was refused by said cashier, who marked said
check, 'Feb. 19-15, No Funds.' A copy of said check,
with said cashier's indorsement thereon, is hereto
attached marked Exhibit B and made a part hereto.
Plaintiff further avers that during the years of 1913 and
1914 the defendant W. E. Mooney was the duly qualified and
acting cashier of said defendant bank, and as such cashier
received all the deposits of plaintiff above set out, and
signed the same as such cashier, and thereby became
responsible to and with said bank and is now jointly with
said bank due and owing to this plaintiff the said sum of
$2,623.02. Wherefore plaintiff prays for summons to issue to
said defendants in terms of the law that they be cited to
appear and answer this petition, and on final hearing
plaintiff have judgment against said bank and W. E. Mooney
for the said sum of $1,958.15 and cost of suit and all other
and further relief to which he may be entitled either in law
or equity."
The
trial court sustained the demurrer of the defendant Mooney to
the plaintiff's petition, and the defendant the Lindsay
State Bank answered as follows:
"Comes now the defendant the Lindsay State Bank,
appearing for itself alone in answer to the petition of the
plaintiff filed herein, and denies each and every allegation
therein contained except such as are hereinafter specifically
admitted.
Said defendant admits that it is a corporation duly organized
and existing under and by virtue of the laws of the state of
Oklahoma, for the purpose of doing a general banking business
as by the banking laws of said state provided, and that
plaintiff is a resident of Cleveland county, Okl.; that the
place of business of said Lindsay State Bank is at Lindsay,
Okl., Garvin county, and that J. B. Fisher is president and
A. C. Bickell is its cashier.
Said defendant further admits that the sum of money alleged
in plaintiff's petition has been heretofore deposited by
said plaintiff in said defendant bank, and said defendant
admits that on the 19th day of February, 1915, plaintiff made
demand of this defendant for the payment of said sum of
$1,958.15 by and through his attorneys, T. N. Robinett and E.
W. Fagan, and that said demand was by said defendant refused.
Further answering, said defendant alleges and states that
prior to the said 19th day of February, 1915, the total
amount of money deposited in said bank by said plaintiff had
been withdrawn by said plaintiff, and at the time of said
demand there was no money to the credit of said plaintiff in
said defendant bank; that the checks by which said money was
withdrawn have been returned by said bank to said plaintiff
and are now in his possession, and this defendant is unable
to attach to this answer copies of said checks, and said
defendant now demands that plaintiff produce for the
inspection of said defendant the said checks, and the said
plaintiff have and produce said checks at the trial of this
cause, or defendant will introduce secondary evidence as to
said checks; that this defendant is in no wise indebted to
said plaintiff and this defendant prays that the plaintiff
recover nothing against it in this action, and that this
defendant have judgment against the said plaintiff for its
cost here most wrongfully expended and for all other and
further proper relief. At the close of the evidence the
plaintiff asked for and was granted leave to and did amend
his prayer by interlineation and asked for judgment for
$2,623.02. And upon the issues thus joined between the
plaintiff and the defendant the Lindsay State Bank, the cause
proceeded to trial before the court and jury on the 26th day
of September 1916, which trial resulted in a verdict in favor
of the plaintiff for the sum of $2,623.15, for which amount
the court accordingly rendered judgment.
The defendant bank filed its motion for new trial on
September 27, 1916, alleging:
First. Irregularity in the proceedings of the court, jury,
and prevailing party and irregularity in the proceedings of
the court by which the defendant was prevented from having a
fair trial.
Second. Misconduct of the jury and prevailing party.
Third. Accident and surprise which ordinary prudence could
not have guarded against.
Fourth. Excessive damages appearing to have been given under
the influence of passion and prejudice.
Fifth. Error in the assessment of the amount of recovery.
Sixth. That verdict is not sustained by sufficient evidence
and is contrary to law.
Seventh. Newly discovered evidence material for the defense
which he could not with reasonable diligence have discovered
and produced at the trial.
Eighth. Error of law occurring at the trial and excepted to
by the party making application.
Ninth. Error of the court in overruling the demurrer to the
evidence of plaintiff.
Tenth. Error of the court in refusing the peremptory
instructions requested by said defendant.
Eleventh. Error of the court in overruling motion of said
defendant for judgment on the special findings
notwithstanding the verdict"
-which
being overruled by the court on October 26, 1916, to reverse
such judgment and verdict, this proceeding in error was
commenced by the defendant bank filing its petition in error
in this court on the 16th day of February, 1917, with
case-made attached, in which petition it assigns error as
follows:
"Its first assignment was that the court erred in
overruling its motion for a new trial.
Its third, fourth, and fifth assignments of error cover the
court's refusal to give defendant's requested
instructions Nos. 1, 2, and 3.
Its sixth, seventh, eighth, ninth, and tenth assignments of
error cover the court's instructions to the jury Nos. 4,
5, 6, 7, and 8.
Assignment No. 11 covers the refusing to admit competent
evidence, 12, in admitting incompetent evidence, and 13, that
the court erred in refusing to allow the plaintiff in error
to file its amended answer after the verdict to the jury and
before judgment was rendered."
We have
carefully examined the entire record in the case, read and
considered the briefs of counsel for the parties, and the
conclusion reached is that the judgment of the trial court is
erroneous and must be reversed, and it will not be necessary
to consider the plaintiff's assignment of error except
the first.
The
plaintiff charged in his petition that he had deposited in
the defendant bank on various dates and in various amounts
beginning on November 28, 1913, up to and including December
31, 1914, a total of $4,248.02; that he held a deposit slip
for each item so deposited, making copies of such deposit
slips exhibits to his petition, and alleging that at divers
times during such period he checked out a portion of said
sum, leaving a balance in said bank at the date of filing his
petition of $1,958.15; that he had theretofore demanded of
said defendant said sum or balance by presenting his check
therefor, the payment of which was by the defendant refused....
