Mkt. St. Bank v. Stumpe

• Decision Date: 26 June 1876
• Citation: 2 Mo.App. 545
• Parties: MARKET STREET BANK, Respondent, v. WILLIAM A. STUMPE et al., Appellants.
• Court: Missouri Court of Appeals

2 Mo.App. 545

MARKET STREET BANK, Respondent,

v.WILLIAM A. STUMPE et al., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 26, 1876.

1. Where a party, though not served, appears on the trial, is voluntarily examined as a witness in his own behalf, and submits himself to the jurisdiction of the court, he is bound by the judgment against him in the cause.

2. The mere fact that the directors of a bank knew of, and sanctioned, overdrafts, will not release from liability the sureties of a teller who causes a loss to the bank by permitting overdrafts.

3. The directors of a bank have no power to sanction overdrafts.

APPEAL from St. Louis Circuit Court.

Affirmed.

E. W. Pattison and Davis & Smith, for appellants, cited: Union Saving Assn. v. Edwards, 47 Mo. 445; Covenant Mutual Life Ins. Co. v. Clover, 36 Mo. 392; Ingraham v. Maine Bank, 13 Mass. 208; Cook v. The State, 13 Ind. 154; Moss v. The State, 10 Mo. 338, and cases cited; Kitson v. Julian, 82 E. C. L. (4 El. & Bl.) 853; Bigelow v. Bridge, 8 Mass. 275; Fell on Guard. and Sur. 126; also p. 129, note 1; Amherst Bank v. Root, 2 Metc. 540; Kingston Mutual Ins. Co. v. Clark, 33 Barb. 201, and cases cited in note a, p. 504 of Fell on Guard. and Sur. (3d. ed.); Wag. Stat. 330, sec. 3; Lexington, etc., R. R. Co. v. Elwell, 8 Allen, 371; Chelesford v. Demarest, 7 Gray, 1; State Treasurer v. Mann, 34 Vt. 376.

A. R. Taylor, for respondent, cited: Orear v. Clough, 52 Mo. 57; Lewis v. Nichols, 26 Mo. 279; Peters v. St. Louis & Iron Mountain R. R. Co., 59 Mo. 406; Feedler v. Schroeder, 59 Mo. 564; Scott v. Niles, 40 Vt. 574; 4 Greene (Iowa), 439, 442; Craig v. Barber, 1 Col. 172; 5 Ark. 518; Roberts v. Townhall, 46 Ill. 66; 29 Wis. 669, 419; 48 Barb. 132; 42 Ala. 491; 4 Denio, 245; Mackey v. Underwood, 47 Mo. 182; Morse on Bank. 316.

BAKEWELL, J., delivered the opinion of the court.

This is an action against the cashier of plaintiff and the sureties on his bond.

The petition alleges that, on February 20, 1872, defendant Stumpe was appointed cashier and teller of plaintiff for the period of one year, and was, on January 14, 1873, reappointed for one year; that, on February 20, 1872, Stumpe as principal, and the other defendants as sureties, executed a bond to plaintiff for $25,000, conditioned that, whereas Stumpe was duly appointed cashier of plaintiff, and may from time to time be continued and reappointed cashier and teller of plaintiff; now, if he shall, during all the time that he shall hold such office of cashier and teller, or act as such, whether under the present appointment or future reappointment, faithfully account for and pay over all moneys, and faithfully perform all his duties as cashier and teller, then the obligation to be void; otherwise, to remain in force. The breach of the bond assigned is that, between January 30, 1873, and April 27, 1873, he paid out to one Thompson, on his check, $6,804.43 over the amount deposited by Thompson, which was wholly lost to the bank; and, also, that he converted to his own use $4,716.82 of the money of plaintiff.

Defendant Stumpe was not served. The other defendants answer, admitting the appointment of Stumpe, as alleged, on February 20, 1872, for one year; they deny any knowledge of his reappointment on January 14, 1873; they also deny all breaches of the bond.

The cause was, by consent, referred to a referee, who in due time filed his report, by which it appears that the referee finds from the pleadings and evidence that plaintiff is a corporation, as alleged; that defendant Stumpe was appointed cashier and teller of plaintiff on February 22, 1872, and reappointed January 14, 1873, and served in that capacity from February 22, 1872, to June 9, 1873, inclusive; that the bond sued on was executed by defendants, and that, whilst cashier and teller of plaintiff, defendant Stumpe paid out to one Thompson, from money of the bank in his possession as cashier, on the checks of Thompson, over and above his moneys on deposit, $6,804.43.

The referee finds further that this was a breach of the bond, and that defendants are liable, on the first count of the petition, in the sum of $7,167.63.

The referee further finds that, during the period aforesaid, and whilst cashier of plaintiff, Stumpe received several sums of money, amounting altogether to $4,716.80, belonging to plaintiff, which he converted to his own use; that this was also a breach of the bond, and that plaintiff is entitled to recover of defendants, for the second count, $4,968.82.

Exceptions were filed to the report of the referee, which were overruled, and judgment was entered for plaintiff against all the defendants. A motion for a new trial having been overruled, the cause is brought here by appeal.

1. The first objection urged here by appellant is that the

judgment is erroneous in this: that it is entered against all the defendants, but that the court had no jurisdiction of Stumpe, as he was not served.

If the judgment is void as to Stumpe, it must be set aside as to all the defendants.

But it is a valid judgment against Stumpe, who was not served, but who, as appears by the record, appeared and subjected himself to the jurisdiction of the court. The record says that the defendants--that is, all the defendants--by their attorneys, appeared and asked leave to file an amended answer; that defendants, by their attorneys, agreed to a reference, and waived notice. The referee recites that the parties appeared before him, and the trial began. Stumpe was sworn as a witness, and examined on behalf of himself and his co-defendants, and states that he has, in his testimony, covered all the ground he intended to cover. The first statement made by Stumpe as a witness in his own behalf is, “I am one of the defendants.”

Nor does he now appeal, or allege that the judgment is not good against him.

When a party to the suit is present and participates in the trial, it is a waiver of service. In this case the record, in many instances, shows that counsel appeared for all parties, and that all parties were present by themselves or counsel during the whole trial of the cause.

2. We are next told that the sureties were not liable for the overdraft of Thompson, for the reason that overdrafts were allowed and sanctioned by the board of directors.

The fact--and it appears to be a fact--that the board of directors, or...