Schierenberg v. Hodges
| Decision Date | 11 December 1976 |
| Docket Number | No. 48172,48172 |
| Parties | John H. SCHIERENBERG, Jr., Appellant, v. Oral HODGES and the First National Bank of Oswego, Kansas, Appellees. |
| Court | Kansas Supreme Court |
John H. Schierenberg, Jr., appeals from an order entering summary judgment for the defendants, Oral Hodges and The First National Bank of Oswego, Kansas, in an action to recover money which plaintiff claims was fraudulently withdrawn from one 'joint savings account' and deposited in another. For the most part the facts are not disputed.
John H. Schierenberg, Jr., and Alene Shierenberg were husband and wife. They were separated and lived apart during the last ten years of Alene's life. On January 16, 1970, and during the separation, John and Alene opened a 'joint savings account,' No. 3499, in the First National Bank of Oswego. The signature card was headed 'Mr. or Mrs. John H. Schierenberg, Jr.' It was signed only by John. On December 15, 1971, Alene opened another 'joint savings account,' No. 3819, in the same bank. The signature card was headed 'Alene Schierenberg or Oral Hodges.' It was signed only by Alene. Oral Hodges was a brother of Alene Schierenberg.
Alene filed suit for divorce from John on June 19, 1974. On August 14 she withdrew $1000 from account No. 3499 and deposited that amount in account No. 3819. On August 30, Alene died. The balances in the accounts were then approximately equal, about $5000 in each.
John filed this action against Hodges and the bank on October 21. He alleged that both savings accounts were 'joint'; that Alene withdrew money from account No. 3499 and deposited it in account No. 3819; and that such action was wrongful, unlawful, and fraudulent. He secured a temporary order restraining the bank from paying any of the moneys in account No. 3819 to Hodges. The bank is, in effect, a stake holder; it has taken no active part in this lawsuit.
Hodges answered, admitting that the accounts were 'joint,' and that Alene withdrew some money from account No. 3499 and deposited it in account No. 3819. He alleged that she had the lawful right to do so, and he claimed that Alene was employed during the ten-year period and that she deposited some of her earnings in account No. 3819. He denied that any of her actions were wrongful, unlawful, or fraudulent. Hodges next moved for summary judgment, claiming that there were no issues of material fact, and that the pleadings and bank records commanded judgment in his favor. At the hearing on this motion he called a bank officer, who identified the signature cards, deposit and withdrawal slips, and other bank records pertaining to the accounts. Plaintiff offered no opposing evidence, but made an oral motion for leave to amend his petition. The court took both motions under advisement.
Several weeks later, and before the court decided the motion, plaintiff filed a written motion seeking leave to file an amended petition, which was attached. The first cause of action of the proposed amended petition alleges that account No. 3819 was the sole and separate property of Alene, and that upon her death the account passed to John as Alene's sole heir. The second cause of action alleges that both accounts were 'savings accounts,' and that Alene wrongfully, unlawfully, and fraudulently withdrew funds from account No. 3499 and deposited them in account No. 3819. Plaintiff seeks to have the court declare account No. 3819 the sole property of Alene at the time of her death, determine plaintiff to be Alene's sole heir, award to him the funds remaining in the account, quiet his title to the account and bar Hodges therefrom. In the alternative, he prays for judgment against Hodges for the amount of money remaining in the account.
The trial court found that both accounts were 'joint' accounts; that Alene had the right to withdraw funds from account No. 3499; that the funds she withdrew from it were her funds; that the funds remaining...
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United Kansas Bank & Trust Co. v. Rixner, 50807
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