McEwen v. Sterling State Bank
| Decision Date | 13 February 1928 |
| Citation | 5 S.W.2d 702,222 Mo.App. 660 |
| Parties | DAVID McEWEN, APPELLANT, v. STERLING STATE BANK, RESPONDENT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Ralph S Latshaw, Judge.
AFFIRMED.
Judgment affirmed.
L. A Laughlin and W. O. Cardwell for appellant.
Sharp & Sharp and Ed. E. Aleshire for respondent.
Trimble, P. J., absent.
This is an action to recover the amount of a deposit in the defendant bank. The case was tried before the court without the aid of a jury. At the conclusion of plaintiff's evidence the court sustained defendant's demurrer to the evidence and thereupon plaintiff took an involuntary nonsuit with leave to move to set aside the same. Such a motion was filed but it being unavailing, plaintiff has taken an appeal to this court.
The petition alleges that Edith McEwen on September 25, 1925, had on deposit with defendant the sum of $ 538.24; that on said day she gave plaintiff, for a valuable consideration, an assignment in writing for the whole of said sum and that on the same day plaintiff presented the assignment to defendant and demanded payment of said sum but payment was refused. The answer of defendant was a general denial and an admission that Edith McEwen had said sum on deposit on said day but it pleaded, as a reason for refusing to pay the deposit to plaintiff, certain garnishment proceedings in the circuit court of Clinton county wherein one Lawrence L. Spore was plaintiff and said Edith McEwen was defendant and wherein defendant in the case at bar had been summoned as garnishee.
Plaintiff filed a reply disclosing the following: That the said suit of Spore v. McEwen, was begun in the circuit court of Clinton county on January 9, 1925; that on the same day a summons was issued directed to the sheriff of Clinton county, Missouri; that the return upon the summons read as follows:
The reply further pleads that said Edith McEwen did not appear in said cause but on April 9, 1925, that court rendered judgment by default against the defendant therein for the sum of $ 500 and costs (the whole apparently amounting to as much or more than the fund in dispute); that on said last-named day execution was issued on said judgment and defendant in the case at bar was summoned as garnishee on April 11, 1925. The reply then alleges that the return of the sheriff of Clinton county was wholly insufficient to give the court jurisdiction over the person of the defendant therein but it does not state in what particular it was insufficient; that at the time the bank was summoned as garnishee and at the time plaintiff herein on September 25, 1925, presented the written assignment to the defendant bank for $ 538.24, there was no valid or legal judgment in the case of Spore v. McEwen; that on October 2, 1925, defendant bank filed its answer as garnishee in said case of Spore v. McEwen, wherein it was stated that it had in its possession the sum of $ 538.24, being a deposit in the bank in the name of Edith McEwen, and the bank further answered that it had been notified and declared its belief to be that the money in its hands had been sold or assigned to one David McEwen (plaintiff in the case at bar). The reply further discloses that on October 6, 1925, plaintiff in said cause of Spore v. McEwen, filed a reply to garnishee's answer in said cause, denying each and every allegation contained therein in connection with the amount of money set out in garnishee's answer as having been assigned or sold to David McEwen; that on the same day the court took up garnishee's answer as well as plaintiff's reply thereto and found that said garnishee had not discharged itself by the payment of the money into court; that the claimant mentioned in said garnishee's answer had no interest in said fund and adjudged that unless the garnishee pay to the sheriff of Jackson county or the circuit court of Clinton county said sum of $ 538.24 on or before November 9, 1925, plaintiff therein would be entitled to final judgment against said garnishee for said sum. The reply further pleads that the circuit court of Clinton county was without power or authority to proceed further in said cause after the filing of the answer of the garnishee until the plaintiff herein, David McEwen, had been summoned to appear therein; that he had not been summoned nor did he appear therein but, notwith-standing, the court on said October 6, 1925, proceeded to pass upon the rights of this plaintiff; that the action of the court in assuming to pass upon the rights of the plaintiff in the case at bar and in ordering said sum to be paid into court by the garnishee bank, was without its jurisdiction and was null and void; that the bank in paying over the money, if it did so as alleged in the answer, did so with the full knowledge of the rights of plaintiff. The reply also consists of a general denial.
Upon a trial of the case the following facts were developed; that plaintiff is a resident of Kansas City, Missouri, and defendant is a State bank in the same city; that plaintiff and Edith McEwen are husband and wife; that he was in business and being illiterate his wife did the clerical work and kept the bank deposit in her name; that she had made several deposits with the bank and on September 25, 1925, had on deposit with defendant bank the sum of $ 538.24, all of which belonged to plaintiff; that on that day, at the request of plaintiff, his wife gave him a check on the defendant bank for the exact amount of the deposit. Plaintiff's attorney testified that he accompanied plaintiff to the bank and presented the check to the cashier for payment; that he had previously acquired knowledge that the money had been garnished; that before going to the bank he ascertained the amount on deposit to the account of Edith McEwen and had had the check drawn and Edith McEwen to sign it for that amount; that payment of the check was refused, but the check was retained by the cashier; that the cashier drew a cashier's check for the amount of plaintiff's check and the cashier "held it there in case the garnishment was released." The witness testified that he had talked to the cashier prior to the time the witness asked for the payment of the McEwen check and "it was understood all along that that money belonged to Mr. McEwen but was carried in Mrs. McEwen's name," but as to exactly when the bank first acquired knowledge of this, is not shown in the testimony.
Plaintiff introduced in evidence the interrogatories to the garnishee bank in the case of Sport v. McEwen, which was filed in the circuit court of Clinton county on October 2, 1925. The answer of said garnishee is as follows:
It is insisted that the court erred in sustaining defendant's demurrer to the evidence for the reason that Edith McEwen, having assigned the entire deposit in the bank in her name to plaintiff and defendant having refused to acknowledge the assignment, a cause of action for the amount of the deposit accrued in favor of plaintiff. The rule in Missouri prior to the Negotiable Instruments Act, passed in this State in 1905, was to the effect that an order drawn for the exact amount of an account in the hands of the drawee, full consideration having been received for the order, with no circumstances indicating any remaining interest in the drawer, would operate as an equitable assignment to the payee of the account and needed no acceptance on the part of the drawee to make it valid, and after notice to the drawee it bound the funds in his hands. [Bank of Commerce v. Bogy, 44 Mo. 13; Boyer v. Hamilton, 21 Mo.App. 520.] The rule is stated in Rice v. Dudley, 34 Mo.App. 383, 391, in this manner:
[See, also, Walker v. Mauro, 18 Mo. 564; McClain v. Weidemeyer, 25 Mo. 364; Mo. Pac. Ry. Co. v. Wright & Co., 38 Mo.App. 141.]
However, it was equally well settled in this State that the giving of a check for a part of the fund was not an assignment of the fund pro tanto in the absence of acceptance or certification of the check by the drawee. The reason given for this holding was that the debtor has a right to pay his debt in solido and to refuse to be subjected to suits by several to claims which might result if the law compelled him to recognize each order as an...
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