Round Prairie Bank of Fillmore v. Downey
| Decision Date | 06 November 1933 |
| Docket Number | 17868 |
| Citation | 64 S.W.2d 701 |
| Parties | ROUND PRAIRIE BANK OF FILLMORE et al. v. DOWNEY. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Andrew County; R. B. Bridgeman, Judge.
“ Not to be reported in State Reports.”
Action by M. D. Downey, guardian and curator, for Lillian Jack Shores, a minor, against the Round Prairie Bank of Fillmore a corporation, and others. From an adverse judgment plaintiff appeals, and defendants file a motion to dismiss the appeal.
Motion overruled. Judgment reversed, and cause remanded, with directions.
Breit & Roberts, of Savannah, for appellant.
Frank Petree, of Oregon, Mo., for respondents.
REYNOLDS Commissioner.
This action is prosecuted by M. D. Downey, as guardian and curator, for his ward, Lillian Jack Shores, a minor.
Plaintiff herein, by petition filed on the 25th day of November, 1932, in the circuit court of Andrew county, seeks to have a preference declared upon a claim for $1,217 against the defendant Round Prairie Bank, a banking corporation, in liquidation, in charge of the commissioner of finance of Missouri and of his deputy commissioner, Glen A. Jackson, growing out of a transaction in which defendant bank, while a going concern, on the 23d day of September, 1931, issued to said guardian and curator the following instrument of writing, to wit:
"Certificate of Deposit
Fillmore, Mo., Sep. 23, 1931. No. 1705.
This Certifies That M. D. Downey G. and C. Lillian Jack Shores Has Deposited with the Round Prairie Bank 80— 982 Twelve hundred Seventeen and no-100 Dollars $1,217.00 payable to the order of self Twelve (12) Months After Date in Current Funds on the return of this certificate properly endorsed, Interest at 4 per cent if left six months. No interest after one year unless renewed.
Upon a trial in said circuit court at the November term, 1932, thereof, it was ordered and adjudged by the court that plaintiff’s claim be allowed as a common claim, but that preference be denied, from which adverse judgment denying the preference, this appeal is prosecuted by plaintiff through her guardian and curator.
The plaintiff, Lillian Jack Shores, is a minor under the age of twenty-one years; and M. D. Downey, who prosecutes this suit for her as her guardian and curator, is her duly appointed, qualified, and acting guardian and curator, and has at all times involved herein been such.
The defendant Bank of Round Prairie is a banking corporation at Fillmore, Andrew county, Mo., and has at all the times involved herein been engaged in transacting a general banking business at Fillmore up to the 29th day of February, 1932, at which time, being insolvent, it was placed in charge of the commissioner of finance of the state of Missouri for liquidation and, from and since that date, has been, and now is, in the process of liquidation under the special charge of Deputy Commissioner of Finance Glen A. Jackson.
Such facts were, in substance, charged in the petition and appear admitted in the record.
The petition further alleged in substance that, on the 23d day of September, 1931, M. D. Downey, as guardian and curator for the plaintiff, Lillian Jack Shores, lent the defendant Round Prairie Bank the sum of $1,217, and took as evidence thereof a certificate of deposit due twelve months after date, bearing interest at the rate of 4 per cent. per annum; that said money so lent was the property of plaintiff, Lillian Jack Shores, and a trust fund in the hands of her said guardian and curator; that the defendant bank, its officers and agents, knew that she was a minor, and that Downey was her guardian and curator; that said money so lent was her money and property and a trust fund in the hands of her guardian and curator; that said loan was not secured by a first mortgage on real estate or by other lawful security, and was contrary to law and an unlawful loan; that within the time required she filed her claim duly verified for the said sum of $1,217, as evidenced by said certificate of deposit, being certificate No. 1705, with the special deputy commissioner in charge of the liquidation of said bank asking a preference thereon; that said deputy commissioner allowed said claim as a common claim, and that plaintiff asserted a preference thereon; and that said commissioner of finance has sufficient funds and assets belonging to said bank with which to pay plaintiff’s said claim. The prayer of the petition is that said claim be decreed preference in payment over claims of general creditors.
That the plaintiff, as alleged in the petition, caused to be filed with Glen A. Jackson, special deputy commissioner in charge of the affairs of defendant bank in liquidation, within the time required her claim for $1,217 duly verified with interest thereon, for which preference is herein sought asking preference thereon, and that said claim was allowed by special deputy commissioner as a common claim, and that said commissioner of finance has sufficient funds and assets belonging to said bank with which to pay the same as a preferred claim, all appear from admissions in the record.
Upon the trial, Francis Fothergill, assistant cashier of the defendant bank, was sworn as a witness, and testified that he was such assistant cashier for a number of years, and was such on the 23d day of September, 1931. Upon the instrument of writing or certificate of deposit No. 1705 for $1,217 being exhibited to him, he identified it as having been signed and issued by him for the defendant bank on September 23, 1931, to M. D. Downey as guardian and curator for plaintiff, Lillian Jack Shores, for $1,217 left by said guardian and curator with the bank as a time deposit; that he knew Downey, and also knew plaintiff, Lillian Jack Shores, and knew at the time of the issuance of said certificate and the making of said deposit that she was a minor, and that Downey was her guardian and curator, and the money involved in the transaction, her money and property; that Downey had deposited money in the bank for a number of years, and that the certificate exhibited was a renewal certificate of a prior certificate then due; that the interest on such prior certificate was added to the amount thereof and the new certificate therefor issued and the prior one canceled; and that said certificate so exhibited to and identified by him was thereupon marked Exhibit 1, introduced in evidence, and appears in the record as Exhibit 1.
M. D. Downey, the plaintiff’s guardian and curator, was also sworn as a witness upon the trial and testified that, upon having qualified as guardian and curator of Lillian Jack Shores, he received certain funds belonging to her which he deposited in defendant bank; that for a while he deposited the same as an ordinary deposit, and afterwards lent the same to the defendant bank, and took as evidence of such loan a certificate of deposit; that he lent the same for twelve months at a time and at 4 per cent. interest. He identified Exhibit 1 as having been issued to him for the loan of the amount mentioned therein. and testified that the same had never been paid. He testified further that he had annually thus lent the money of his ward to the bank for several years; that each year the interest was added to the amount of the certificate falling due; and that a new certificate bearing interest at 4 per cent. for the next twelve months was issued to him.
Opinion.1. Defendants have filed a motion to dismiss the appeal herein, based on the contention that plaintiff in her brief failed to comply with rule 17 of this court, in that she had failed to make a full assignment of error, and that she has not designated an "assignment of error," as is specifically required by said rule.
It is true that plaintiff’s brief is inartificially made and arranged, and is subject to criticism if a strict and literal compliance with the rule be required; but lack of such strict and literal compliance is not always fatal. Houck v. Bridwell et al., 28 Mo.App. 644.
However, it easily appears in this case from plaintiff’s statement, brief, and argument throughout that the complaint is against the action of the trial court in its refusal to allow the claim sued upon as a preferred claim and in ordering judgment denying its allowance as such, which action and judgment is claimed to be erroneous; and such is the dominant error of which complaint is made. Defendants’ counsel had no difficulty in gathering from the brief what plaintiff was "driving at," judging from the brief by him herein, presenting his defense and answer thereto; and neither does this court have any.
As said by this court in the case of Neff v. Sovereign Camp, W. O. W., 226 Mo.App. 899, 48 S.W.2d 564, 566, in passing upon a similar motion:
Following the spirit and the letter of the cases cited and others in harmony therewith, the motion to dismiss is overruled.
2. The issues in this case lie within a narrow compass. Unless the transaction in question between...
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