Moody v. Jacobs

• Decision Date: 15 May 1924
• Docket Number: 8 Div. 645.
• Citation: 100 So. 467,211 Ala. 291
• Parties: MOODY v. JACOBS.
• Court: Alabama Supreme Court

100 So. 467

211 Ala. 291

MOODY v. JACOBS.

8 Div. 645.

Supreme Court of Alabama

May 15, 1924

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action on official bond by J. C. Jacobs, for the use of Hamlin Caldwell, against A. H. Moody. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

D. P Wimberly, of Scottsboro, for appellant.

Ernest Parks, of Scottsboro, for appellee.

THOMAS J.

The trial was had without a jury on complaint and special pleas-among others, No. 7-and resulted in judgment for plaintiff. Material testimony was given ore tenus. The register had put in bank at interest funds deposited with that official for redemption of mortgage. Hackett v Cash, 196 Ala. 403, 72 So. 52; Andrews v. Grey, 199 Ala. 152, 74 So. 62; Gray v. Handy, 204 Ala 559, 86 So. 548. However, since the evidence is without conflict, there is no occasion for the application of the rule stated in the cited cases.

It is provided that, if any official named in the statute knowingly converts to his own use, or permits another to use, any money paid into his office, or received by him in his official capacity, he is liable to prosecution for embezzlement. Code, § 6838; Ex parte Cowart, 201 Ala. 55, 77 So. 349; Gerald v. Walker, 201 Ala. 502, 78 So. 856; State v. Montgomery Savings Bank, 199 Ala. 365,. 74 So. 942; Clisby v. Mastin, 150 Ala. 132, 43 So. 742, 124 Am. St. Rep. 64; Alston v. State, 92 Ala. 124, 9 So. 732, 13 L. R. A. 659; Lacey v. State, 13 Ala. App. 212, 68 South 706, certiorari denied in 193 Ala. 677, 69 So. 1018. It follows that, if a register deposit the moneys paid him in his official capacity as a deposit on interest account in a bank, without the authority of the court having jurisdiction of that fund, while the same creates the relation of debtor and creditor between the parties, such deposit amounts to a conversion, and he is liable for the amount, with the legal interest thereon. Clisby v. Mastin, 150 Ala. 132, 43 So. 742, 124 Am. St. Rep. 64; McPhillips v. McGrath, 117 Ala. 549, 23 So. 721.

By reason of the matter set up in special plea No. 7, it is important that we determine from the pleading and evidence who the real plaintiff was-whether J. C. Jacobs or Hamlin Caldwell.

In a suit in the name of a person merely holding the legal title for the use of a beneficiary, the latter is regarded the party to the record. Code, § 2490; Smith v. Yearwood, 197 Ala. 680, 73 So. 384; U.S. S. B. v. Sherman, 208 Ala. 83, 93 So. 834; Ex parte Bromberg, 121 Ala. 361, 25 So. 994; B. R., L. & P. Co. v. Ætna A. & L. Co., 184 Ala. 601, 64 So. 44; A. C. G. & A. R. Co. v. Kyle, 204 Ala. 597, 87 So. 191; Winter-Loeb Gro. Co. v. Boykin, 203 Ala. 187, 82 So. 437. The complaint alleges the facts; and among other things it is averred:

"Said decreal [decretal] order allowed said E. H. Caldwell to assign in writing his right to redeem under said mortgage, and on the 10th day of December, 1912, said E. H. Caldwell executed in writing an assignment of his right to redeem under said decree to Hamlin Caldwell, and on the 15th day of August, 1914, said E. H. and Hamlin Caldwell assigned their right of redemption under said mortgage to J. C. Jacobs, the plaintiff in this cause, and said deposit was made in pursuance of said decreal [decretal] order. And plaintiff avers that said Hamlin Caldwell as a matter of fact borrowed said sum of money from this plaintiff, and that he paid and is to pay plaintiff interest on said sum, and said Hamlin Caldwell was and is liable to plaintiff for principal and interest on said sum. Plaintiff avers that said J. A. Kyle deposited in his name the said sum of $2,407.77 in the J. C. Jacob's Banking Company's Bank in Scottsboro, Ala., on the 15th day of August, 1914, where said deposit remained until the 23d day of January, 1917, when said sum was transferred on the books of said bank from said Kyle's account to that of said B. F. Shook, register. Plaintiff further avers that while said sum of money was on deposit in said bank, to wit, from the 15th day of August, 1914, to the 23d day of January, 1917, said J. A. Kyle collected from said bank $237.77, as interest on said redemption funds so deposited, and when said J. A. Kyle, register aforesaid, turned the office and all books, papers, and moneys belonging thereto to his successor in office, the said B. F. Shook, he failed to turn over to said B. F. Shook, register, said $237.77, belonging to plaintiff, or to deliver said sum to plaintiff or to any one legally authorized to receive said sum of money."

It is insisted that, although the suit is brought by J. C. Jacobs for the use of Hamlin Caldwell, it was in truth and fact for his own benefit, and that he was particeps criminis with Kyle in so depositing the special or trust fund in question. It will be noted that it is averred in the complaint that the right of redemption under said mortgage in Hamlin and E. H. Caldwell was assigned to J. C. Jacobs on August 15, 1914, the same day the deposit at interest in the bank of J. C. Jacob's Banking Company was made by J. A. Kyle. The evidence shows that J. C. Jacobs was the president of the bank, and agreed with Hamlin Caldwell to furnish

said moneys and to redeem the Caldwell interest in the land for the purpose indicated; and J. C. Jacobs gave therefor his individual check to Caldwell or Kyle, and same was deposited by Kyle in the bank. The alleged beneficiary, Hamlin Caldwell, testified that he "made the arrangements with J. C. Jacobs to furnish the money for the redemption and he paid it into court"; that witness did not "receive any interest upon the money so deposited," nor did he "authorize J. C. Jacobs to receive any interest on that money deposited"; and that witness was "liable to J. C. Jacobs for the funds so deposited" in court.

The plaintiff introduced H. G. Jacobs as a witness, who...