Marshall Bank v. Turney

• Citation: 150 S.W. 693,105 Ark. 116
• Parties: MARSHALL BANK v. TURNEY
• Decision Date: 21 October 1912
• Court: Supreme Court of Arkansas

150 S.W. 693

105 Ark. 116

MARSHALL BANK v. TURNEY

Supreme Court of Arkansas

October 21, 1912

Appeal from Searcy Circuit Court; George W. Reed, Judge; reversed.

Judgment reversed.

S. W Woods, for appellant.

1. Giving the testimony its strongest probative force in favor of appellee, it fails to establish a gift. Thornton on Gifts and Advancements, 105-8; 44 L. R. A. 208; 18 L. R. A. 170; 23 L. R. A. 184; 1 Ark. 83; 79 Ark. 69; 72 Ark. 307; 43 Ark 307; 59 Ark. 191; 60 Ark. 169; 20 Cyc. 1209, 1211 Id. 124, 125; 8 Am. & Eng. Enc. of L. (1 ed.) 1314; 122 N.E. 747.

2. It was error to permit appellee to testify to alleged conversations and transactions with the deceased, over the objections of appellants. Kirby's Dig., § 3093; 79 Ark. 69; 52 Ark. 550; 46 Ark. 306.

Appellee pro se.

1. The appeal should be dismissed because the motion for new trial was not filed within the time required by law. Kirby's Digest, § 6218. A mere statement by an attorney that he was "unavoidably prevented" from filing the motion for new trial within three days is not sufficient.

2. The evidence sustains the verdict.

OPINION

MCCULLOCH, C. J.

The plaintiff, John G. Turney, instituted this action to recover a sum of money deposited with the Marshall Bank of Leslie, Arkansas, in the name of his father, Dr. George Turney, during the latter's lifetime.

The undisputed facts are that Doctor Turney held two notes, executed to him by one Pate, for balance of purchase price of a tract of land, and he turned the notes over to the plaintiff with instructions to collect the same and deposit the money in the bank. Plaintiff collected the sum of $ 561 at different times during his father's lifetime, and deposited it with instructions to the cashier of the bank to place it to the credit of his father's account. During his father's lifetime he drew out a portion of it on checks to which he signed the former's name, thereby reducing the amount to $ 513.60, which was in the bank at the time of his father's death. Subsequent to that event he drew out further amounts for the purpose of paying debts of the estate, thus reducing the amount in the bank to the sum of $ 361.74. The bank paid those checks under an agreement with plaintiff that he would return the same to the bank if the payments were found to be unauthorized. Thereafter John Allen was appointed administrator of the estate of Doctor Turney, and the balance then in the bank to the credit of Doctor Turney was paid over to the administrator. This suit is against the bank, and against Allen as administrator, and Sarah Turney, the widow of Dr. George Turney.

In the trial below the plaintiff recovered a judgment against all of the defendants for said amount, which was paid over to the administrator, and the defendants appealed to this court.

There are numerous assignments of error as to rulings of the court in admitting evidence and in giving and refusing instructions, but we pass them all over without discussion except the one assignment that the verdict is not supported by the evidence, as the conclusion we reach upon that assignment is finally decisive of the case. We are of the opinion that, according to the undisputed evidence, the money in bank was not the property of the plaintiff, and that he was not entitled to recover the same, It is unnecessary to determine whether the alleged gift of the money by Doctor Turney to the plaintiff, if consummated by delivery constituted a gift inter vivos or a gift in view of death, "donatio causa mortis," as expressed in the Latin phrase. In either kind of gift delivery of the thing is absolutely essential to the completed gift. Ammon v. Martin, 59 Ark. 191, 26 S.W. 826; Hatcher v. Buford, 60 Ark. 169, 29 S.W. 641. The plaintiff's own testimony shows that his father never intended to...