McQuerry v. Bank of Eldorado Springs

• Decision Date: 08 September 1936
• Citation: 96 S.W.2d 515,230 Mo.App. 1215
• Parties: MACK McQUERRY, RESPONDENT, v. BANK OF ELDORADO SPRINGS ET AL., APPELLANTS
• Court: Missouri Court of Appeals

96 S.W.2d 515

230 Mo.App. 1215

MACK McQUERRY, RESPONDENT, v. BANK OF ELDORADO SPRINGS ET AL., APPELLANTS

Court of Appeals of Missouri, Springfield

September 8, 1936

Appeal from the Circuit Court of Cedar County.--Hon. Thomas W Martin, Judge.

AFFIRMED.

Judgment affirmed.

J. E Crook, Ralph B. Johnson and Herman Pufahl for appellants.

All matters leading up to the judgment should have been excluded because they were merged in the judgment. O'Brien Boiler Co. v. Haydock, 59 Mo.App. 653; Wycoff v Epworth Hotel Co., 146 Mo.App. 554, l. c. 559 and 560; Citizens Bank v. Gate, 36 S.W.2d 426. The court erred in allowing claimant any interest on the deposit and especially in allowing interest up to the time of the trial. Claimant is not entitled to interest on a trust fund. State v. Page Bank, 14 S.E.2d 597, l. c. 599.

Neale & Newman and O. O. Brown for respondent.

The fact that the claim for the amount of the deposit was reduced to judgment does not bring into operation the doctrine of merger under the facts in this cause. 34 C. J. 754; 2 Freeman on Judgments (5 Ed.), 1172; Cooksey v. K. C., St. J. & Council Bluffs Railway Co., 74 Mo. 477, l. c. 480; State ex rel. v. Citizens State Bank (Neb.), 214 N.W. 6. The court did not err in allowing claimant interest on the claim up to the time of trial. Johnson v. Farmers Bank of Clarksdale, 11 S.W.2d 1090.

SMITH, J. Allen, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

--There is not much controversy over the facts in this case. It is a claim against the Bank of Eldorado Springs, in liquidation, wherein the plaintiff seeks to have his claim allowed as a preferred claim. He was successful before the circuit court and obtained a judgment on June 24, 1935, allowing his claim as a preferred claim for $ 1750.89, with interest at the rate of six per cent from the date of judgment. From this judgment the Commissioner of Finance appealed to this court.

The facts as shown by the record before us are substantially as follows:

The Bank of Eldorado Springs was a banking institution doing business at Eldorado Springs, in Cedar County, Missouri.

On October 21, 1932, the Mayor of the City of Eldorado Springs, issued a proclamation declaring a moratorium of this bank for the purpose of reorganization. The bank closed in pursuance to that proclamation and remained closed until November 28, 1932. On that date the bank reopened under a reorganization plan under which certain bad assets had to be taken out and were taken out. The depositors were asked to assign one-half of their accounts to three trustees, and an equal or like amount of the assets of the bank were taken out, and it was agreed that ten per cent of the remaining one-half of the deposit could be checked on by the depositor, and then at the end of ninety days five per cent more of the remaining one-half would be released so that the depositor could check on it

About eighty-five or ninety per cent of the depositors signed an agreement as above indicated, but the plaintiff, Mack McQuerry did not sign any agreement.

After the bank opened up on November 28, 1932, it accepted new deposits up until February 4, 1933, and did a general banking business except that it did not permit the old depositors to check out their accounts except as to ten per cent of the one-half and then five per cent after ninety days. While the plaintiff did not sign the agreement, yet on November 28, 1932, he did draw a check for $ 83.27, which was ten per cent of the one-half which was set apart. He did not draw out the other five per cent.

On February 4, 1933, the claimant wrote out a check as follows:

Eldorado Springs, Mo.,

Feb. 4th, 1933. No.....

BANK OF ELDORADO SPRINGS

Pay to Cash or Bearer

$ 1,582.15

One Thousand Five Hundred Eighty-two and 15-100

DOLLARS

(Signed) MACK McQUERRY.

Pencil notation on check:

"Funds not available."

The claimant testified that this was the only check that he presented. It was admitted that when the Commissioner of Finance and his deputy took over the bank on March 27, 1934, the following amounts were on hand:

Currency in vault

$ 2,005.00

Silver in vault

1,045.00

Miscellaneous small change

8.71

Pennies

64.75

Total

$ 3,123.46

The witness testified that he presented the check to Miss Kent, the assistant cashier and that she referred him to Mr. Davis, the president of the bank. He said he presented the check and told her he wanted to draw the money and she referred him to Mr. Davis, the president of the bank and he took the check to Mr. Davis and said, "I want my money," and Mr. Davis said funds were not available and wrote on the check "Funds not available."

On February 8, 1933, the plaintiff filed suit against the Bank of Eldorado Springs for recovery of the bank deposit. The suit was returnable to the March term, 1933, Circuit Court of Cedar County, Missouri, at Stockton. In this suit plaintiff claimed that on October 21, 1932, he had on deposit the sum of $ 1,582.17; that on said date (October 21, 1932) he drew a check on the bank for that amount and that payment was refused. He asked for judgment for $ 1,582.17 and interest thereon from October 21, 1932, at six per cent per annum.

On May 26, 1933, the defendant bank filed an answer, and during the November term, 1933, judgment was rendered in favor of the plaintiff and against the defendant bank in the sum of $ 1,683.42, being the amount of the deposit ($ 1,582.17) with interest thereon from October 21, 1932, at the rate of six per cent per annum the interest amounting to $ 101.25. The judgment provided that execution should be stayed until the first day of the March term, 1934, unless within such time the defendant bank should be taken over in liquidation in which event the stay of execution should cease.

On the 1st day of the March term, 1934, the plaintiff sued out an execution against the bank but before the sheriff of Cedar County made any levy under the execution, the bank closed its doors and turned its assets over to the Commissioner of Finance of the State of Missouri.

After the bank was taken over by the Commissioner of Finance, the plaintiff filed his claim against the bank which was rejected by the Commissioner of Finance and thereupon within proper time the plaintiff filed his claim in the Circuit Court of Cedar County, at Eldorado Springs, and the case came on for hearing on plaintiff's claim for preference, and at a trial held on the 24th day of June, 1935, judgment was rendered allowing the plaintiff's claim for the sum of $ 1,750.89, which was the amount of the original judgment, $ 1,683.42 and interest thereon in the sum of $ 167.47, and the same was adjudged and allowed as a preferred claim, and the judgment further provides that it shall bear interest from the date of its rendition at the rate of six per cent per annum.

There was some controversy over the form of pleadings in the circuit court when this claim for preference was presented to the court, because of the fact that the Commissioner of Finance had not allowed the claim as an ordinary claim or as a preferred claim, but the record before us shows the following stipulation, caption and signatures omitted.

"Now at this day comes plaintiff and Commissioner O. H. Moberly, by counsel, and agree in open court that the petition may be treated as original suit. Motion formerly filed by Commissioner O. H. Moberly to dismiss is withdrawn by agreement of counsel for plaintiff and defendant. This cause is ordered transferred on the original files to Stockton, Missouri, Circuit Court. Commissioner given until March 10, 1935, to plead."

The answer clearly states the defendants' position, and, caption and signature omitted, is as follows:

"Now come the defendants and for their answer to the plaintiff's petition admit that the Bank of Eldorado Springs is and was a banking corporation as alleged in plaintiff's petition.

"Admit that it closed its doors on or about the 27th day of March, 1934.

"Admit that O. H. Moberly is the Finance Commissioner of the State of Missouri, and John S. Pence is the special deputy commissioner of Finance and that as such they have charge of the assets of said bank; and deny each and every other allegation in said petition contained, and deny that plaintiff is entitled to a preferred claim.

"Further answering these defendants state that after plaintiff obtained judgment against the defendant Bank of Eldorado Springs, the plaintiff agreed that no execution issue on said judgment until the next regular term of the circuit court in which such judgment was rendered and obtained, and that by reason of obtaining such judgment and by reason of said agreement not to have any execution issued plaintiff became a general creditor and is not entitled to any preference and is not entitled to have his claim allowed as a preferred claim; and having fully answered, these defendants pray to be discharged with their costs."

There were several assignments of error set out by appellants, but we find the points set out in the assignments are considered by defendants as one point, for the matter is expressed in the printed argument, as follows:

"The question is can a depositor who has money on deposit in the bank go to the bank and make a demand and upon the refusal or failure of the bank to pay, bring a suit, recover judgment including interest from the day of demand to the day judgment is rendered, have an execution issued to collect the judgment, and then after the bank closes its doors, file a suit against the Commissioner of Finance and obtain a preference not only for the amount of his deposit, but also for the amount of the interest from the time he made demand to the date that the judgment is rendered in the circuit court on the...