Regan v. First National Bank of Arizona

• Decision Date: 15 April 1940
• Docket Number: Civil 4107
• Citation: Regan v. First National Bank of Arizona, 55 Ariz. 320, 101 P.2d 214 (Ariz. 1940)
• Parties: E. D. REGAN, Appellant, v. FIRST NATIONAL BANK OF ARIZONA, a National Banking Association, Appellee
• Court: Arizona Supreme Court

101 P.2d 214

55 Ariz. 320

E. D. REGAN, Appellant, v. FIRST NATIONAL BANK OF ARIZONA, a National Banking Association, Appellee

Civil No. 4107

Supreme Court of Arizona

April 15, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. G. Frazier, Judge. Judgment affirmed.

Mr Robert D. Dewolf, of Phoenix, Arizona, and Mr. Lee Combs Jr., of Los Angeles, California, for Appellant.

Messrs Armstrong, Kramer, Morrison, Roche & Duffy, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal by E. D. Regan, hereinafter called plaintiff, from a judgment in favor of First National Bank of Arizona, a national banking association, hereinafter called defendant. The facts shown by the record and necessary to a determination of the appeal may be stated as follows:

In 1934, plaintiff brought an action in the superior court of Maricopa County against Cary O'Steen and other parties, and on July 14th caused a writ of garnishment to be served on defendant herein, requiring it to show any indebtedness to Cary O'Steen, Mary O'Steen, his wife, American Mutual Benefit Society, a California corporation, or American Mutual Benefit Society, an Arizona corporation. Defendant answered that at the time the writ was issued Cary O'Steen was the renter of a certain safe deposit box owned by it and numbered 460, but that the garnishee knew nothing of the contents of the box; that it was not indebted to either of the O'Steens or the California company, nor did it have any effects of theirs in its possession, but that it was indebted to the Arizona company in the sum of $411.48. This answer of the garnishee was never controverted, as permitted by the statute. On Octover 27th another writ was issued in the same action against defendant herein, requiring it to answer concerning the defendants named in the first writ, and also as to Raymond O'Steen, Western Benefit Society, an Arizona corporation, and Burbank Mutual Life and Benefit Association, a California corporation. The garnishee answered that it was indebted to Western Benefit Society in the sum of $15.70, but was not indebted to any of the others, not did it know where they had any effects. This answer also was never controverted. On January 21, 1935, judgment was rendered by default, in the principal suit, in favor of plaintiff against Cary and Mary O'Steen, and American Mutual Benefit Association, Western Benefit Society and Burbank Mutual Life, and Benefit Association, California corporations, and on November 27, 1937, judgment was rendered after trial in the same case against Western Benefit Society and American Mutual Benefit Society, Artizona Corporations, for something over $5,000. Thereafter, and on December 20, 1937, a writ after judgment was served on defendant herein, and it answered that it was indebted to American Mutual Benefit Society and Western Benefit Society, Arizona corporations, in the sums of $411.48 and $23.60, respectively, and that it knew of no persons who had any effects of any of said defendants in their possession. Plaintiff controverted this answer of the garnishee and tendered an issue in garnishment, wherein it set up as follows:

"That garnishee herein has failed to disclose in its answer on file herein whether or not it is now indebted to any person, partnership, corporation or other legal entity not named as a defendant herein, but in which one or more of the defendants herein have the power, by power of attorney, agent, president or otherwise to exercise control over said funds or indebtedness.

"That plaintiff alleges that the garnishee is indebted to or have effects belonging to C. Collins, or to some other individual, person or corporation or legal entity unknown to plaintiff, but that Cary O'Steen or some other defendant herein, is empowered by arrangement with garnishee herein, as agent, treasurer or attorney in fact for said C. Collins or other person, to exercise full control over said effects, indebtedness or other property held by garnishee.

"That said powers of attorney, corporate entities and arrangements are all fictitiously formed for the purpose of evading effective enforcement of the process herein, and that all funds and property held by the garnishee herein by persons or identities or corporations not parties to this action, but which are under the control of the parties hereto, is in fact the property of said defendants herein.

"That said garnishee should be required to disclose in its answer what if any such relationship exists between the parties to this action and said garnishee, and what if anything it is holding on behalf of some person or corporation not a party hereto, but which is under the control of said defendants herein.

"That plaintiff is informed and believes that defendants herein and garnishee have transacted business heretofore in a similar manner, and that the sum of $2992.26 was paid to Cary O'Steen as agent for the Western Benefit Society, after a levy of a writ of garnishment against said Cary O'Steen, but prior to the time that said Western Benefit Society was made a party defendant herein, and that a contract of indemnity was entered into by the garnishee for its protection upon payment of said sum."

The garnishee answered the tender of issue by a general denial and a trial of the issue was duly had on April 15, 1938, at the conclusion of which the court made its order as follows:

"It is Ordered that the said issue in garnishment between the plaintiff and garnishee be discharged, and the garnishee discharged upon its answer."

This order was never appealed from. Thereafter plaintiff commenced the present action, and on August 29, 1938, filed the amended complaint upon which judgment was finally rendered. This complaint in substance sets up that the suit was filed in 1934, as above stated; the first garnishment and answer; the second garnishment and answer; the judgment of January 21 1935, and November 27, 1937, and alleges...