Smith v. Burns, 1671.
| Decision Date | 28 May 1937 |
| Docket Number | No. 1671.,1671. |
| Citation | 107 S.W.2d 397 |
| Parties | SMITH v. BURNS et al. |
| Court | Texas Court of Appeals |
Appeal from Erath County Court; Wallace Scott, Judge.
Action by J. E. Smith against E. L. Burns and another. From a judgment for defendants, plaintiff appeals.
Affirmed in part, and cause dismissed in part.
Robt. L. Thompson, of Stephenville, for appellant.
Chandler & Chandler and Oxford & McMillan, all of Stephenville, for appellees.
J. E. Smith sued to recover of E. L. Burns and Farmers-First National Bank of Stephenville, jointly and severally, the sum of $125.48, being the amount of a deposit by Smith in said bank. The bank paid the amount of the deposit to E. L. Burns upon presentation to it of duly authenticated letters of guardianship showing his appointment and qualification as the guardian of Smith, a non compos mentis. Plaintiff's petition in part alleged that "said defendants Farmers-First National Bank of Stephenville and said E. L. Burns acting together as well as severally took into their possession, and possession of each of them, plaintiff's account with said bank in the sum of $125.48, and without his knowledge or consent, and converted said money unto their own use and for the use of each of them; plaintiff has made many demands on said defendants, and each of them, for the return of said money and for its payment to him, but that they, and each of them, fails and refuses to pay over to him said money, or any part thereof."
Other allegations show the basis of Smith's claim to be the asserted invalidity of orders of the probate court adjudging plaintiff a lunatic and appointing Burns as his guardian, and a subsequent final adjudication by the same court of the invalidity of said orders.
After said orders were declared void by judgment of the court, Burns, the guardian, presented an account for settlement in which, among other things, he claimed credit for the $125.48 received from said bank. The account was allowed by the county court, but, upon appeal to the district court, the whole proceeding was dismissed on the theory that, the lunacy judgment and appointment of the guardian being void, the court had no jurisdiction to hear and approve the guardian's account.
The defendants, among other things, pleaded that Burns, the guardian, had used the entire $125.48 for the use and benefit of Smith.
Upon a jury trial a verdict in response to a peremptory instruction was returned for the defendants. Plaintiff asked for a peremptory instruction in his favor which was denied.
The pleadings of plaintiff purport to claim the $125.48 on the theory that the defendants had jointly and severally converted that sum of money belonging to plaintiff. If such were the only cause of action attempted to be alleged, there would be no escape, we think, from the conclusion that the pleadings were insufficient. The relation of the bank to Smith presumptively, and for aught there is alleged to show the contrary, was the relation of debtor and creditor. The money when deposited became the property of the bank. 7 Am.Jur. p. 313, § 444; 6 Tex.Jur. p. 225, § 95; Id. p. 231, § 99. "It is elementary," states the last-cited authority, "that the making and acceptance of an ordinary deposit creates, as between the bank and the depositor, the relation of debtor and creditor, the title to the money or other thing deposited passing to the bank." It follows that, if it should be conceded that the bank was wholly without authority to pay the amount of the deposit to Burns as guardian of Smith, no right of action based alone upon such lack of authority would arise in favor of Smith against Burns. Story v. Palmer (Tex.Civ.App.) 284 S.W. 331. Two reasons (each independently sufficient) compel this conclusion. The first is that Smith had no title to the money necessary to support an action for its conversion. The second is that, if he did have, there was no such description or identification of it as a specific chattel to constitute it the subject of conversion. Story v. Palmer, supra. If, therefore, plaintiff's pleadings can be regarded as sufficient to state a cause of action against either defendant, that can be true only upon the view that they show the nature of the suit is that of an action of debt against the bank to recover the amount of the deposit. The questions raised will be considered upon that interpretation of the pleadings.
The bank, as debtor to Smith, owes him the $125.48 unless (1) the payment of $125.48 to Burns as Smith's guardian was in law payment to Smith, or (2)...
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