Sanders v. Owens

• Citation: 47 S.W.2d 132
• Decision Date: 07 March 1932
• Docket Number: No. 4971.,4971.
• Parties: SANDERS v. OWENS et al.
• Court: Missouri Court of Appeals

47 S.W.2d 132

SANDERS v. OWENS et al.

No. 4971.

Springfield Court of Appeals. Missouri.

March 7, 1932.

Appeal from Circuit Court, Pemiscot County; John E. Duncan, Judge.

"Not to be officially published."

Action by A. G. Sanders against D. L. Owens, T. M. Stoffle and others. Judgment against named defendants, and in favor of other defendants, and named defendants appeal, but the appeal of defendant first named was dismissed.

Reversed, and remanded for a new trial.

See also (Mo. App.) 40 S.W.(2d) 738.

Ward & Reeves and McKay & Peal, all of Caruthersville, for appellants.

Von Mayes and N. C. Hawkins, both of Caruthersville, for respondent.

COX, P. J.

This is an action by a depositor in the Bank of Wardell, of Wardell, Mo., against defendants, who were members of the board of directors of said bank, for the purpose of securing personal judgment against them for the amount plaintiff had on deposit in said bank when it closed. Trial by jury, and verdict returned against defendants T. M. Stoffle and D. L. Owens and for the other defendants. Motion for new trial filed by Stoffle and Owens, and after the court had required and plaintiff had entered a remittitur the motion was overruled and these two defendants appealed. The appeal of D. L. Owens has been dismissed.

At the close of plaintiff's evidence, and at the close of all the evidence, demurrers thereto were filed and overruled and the first question to be determined here is whether or not the evidence as a whole was sufficient to take the case to the jury.

It was shown that plaintiff had made the deposits as alleged. The burden was on plaintiff to show that the bank was insolvent or in failing circumstances at the time these deposits were made. The petition was in ten counts, one count for each deposit. The dates and amounts of these being as follows: April 4, 1930, $71.33; April 5, 1930, $176.80; April 10, 1930, $82.70; April 14, 1930, $262.37; April 21, 1930, $271.62; April 28, 1930, $247.88; May 1, 1930, $79.26; May 3, 1930, $240.30; May 9, 1930, $121.25; May 10, 1930, $166.50, making a total of $1,720.01. A verdict was returned for the full amount asked on each count. Before passing on the motion for new trial, the court required a remittitur of $417.32 in a general way without any reference to any particular count in the petition. This remittitur was made by plaintiff, and the court then rendered judgment in his favor of $1,302.69, but whether in a total sum or a part on each count does not appear. One of appellant's assignments of error is, "The Court erred in permitting a general remittitur from ten verdicts and rendering a general judgment for the amount remaining." This alleged error was not called to the attention of the court in the motion for new trial, and no motion in arrest of judgment was filed, and for that reason this assignment of error is not here for review.

The merits of this appeal rest on the question whether the evidence is sufficient to sustain the verdict, and in determining that question our first inquiry must be whether the evidence will support a finding that the bank was insolvent or in a failing condition at the time the deposits were made.

This was a small bank of $10,000 capital, and, without reciting the evidence, we say that is was sufficient to sustain a finding that the bank was not profitable, and that its liquidation had been considered by some members of the board of directors. That, however, is not sufficient to show insolvency. It is shown that defendant D. L. Owens was cashier and in actual charge of the operation of the bank. He was placed upon the stand by plaintiff and testified that his brother and a woman worked under him in the bank. That he went to Jonesboro, Ark., one day to see a doctor about his health and came back the next day and left the bank in charge of his brother while he was gone. While he was away a fire occurred in the vault of the bank which destroyed all the books and notes that belonged to the bank. That fire was what caused the bank to close. It was not ordered closed by the board of directors or the state finance department on account of the bad condition of the bank, but is was closed because its books and notes had been destroyed by the fire, and of course this destruction of the books and papers made it extremely difficult to prove the condition of the bank at any specific date. The deposits made by plaintiff on which suit was brought began on April 4, 1930, and ended May 10, 1930, and plaintiff was required to prove the bank insolvent on those dates. Plaintiff did the best he could, but was only able to prove a few items that were not as they should be. The fire occurred and the bank closed about May 14, 1930, only four days after plaintiff's last deposit. The state finance department took charge on May 15, 1930, and about the last of May placed P. T. Browning in charge for the purpose of liquidating the bank. What occurred at the bank between May 15, when the finance department took charge, and the last of May, when Mr. Browning was placed in charge, is not shown. When Mr. Browning took charge he found $620 in cash in the bank. Defendant D. L. Owens, the cashier and a witness for plaintiff, testified that when he left the bank to go to Jonesboro there was $1,000 to $1,500 cash in the bank. How it was reduced to $620 is not shown. Mr. Browning testified that after he took charge he called the directors together and they gave him the names of the parties who were indebted to the bank and the amounts they owed as far as they could remember. This totaled about $8,000. Mr. Browning had found $2,507.25 that parties had admitted they owed to the bank. He also found a copy of a statement by the officers of the bank that was published in a newspaper showing the condition of the bank on April 16, 1930. In that statement the building and fixtures were carried at $6,508.81. The bank had loans amounting to $14,854.54 and had on deposit $14,402.56 and no bills payable. They had cash on hand about $3,000. They had the banking house and fixtures in addition. Mr. Browning testified that he had no information of a change in condition from that date to the present time. He also stated that, according to that statement, the bank had intact more than enough to pay off all deposits. He also stated: "Of my own knowledge at the time of the fire I couldn't say whether the bank was solvent or not. I am not telling the jury that it was...