United Bank & Trust Co. v. Washburn & Condon

• Decision Date: 10 November 1930
• Docket Number: Civil 2901
• Citation: 37 Ariz. 223,292 P. 1025
• Parties: UNITED BANK & TRUST COMPANY, a Corporation, Appellant, v. WASHBURN & CONDON, a Copartnership Composed of F. L. WASHBURN and J. W. CONDON, Appellees
• Court: Arizona Supreme Court

292 P. 1025

37 Ariz. 223

UNITED BANK & TRUST COMPANY, a Corporation, Appellant, v. WASHBURN & CONDON, a Copartnership Composed of F. L. WASHBURN and J. W. CONDON, Appellees

Civil No. 2901

Supreme Court of Arizona

November 10, 1930

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Messrs Kingan & Darnell and Mr. John W. Ross, for Appellant.

Messrs Mathews & Bilby and Mr. Norman S. Hull, for Appellees.

OPINION

ROSS, J.

This is an appeal by the United Bank & Trust Company, garnishee from a judgment against it obtained in an action by Washburn & Condon, copartners, against R. L. Smith, debtor.

The issues between the garnishee, to which we shall hereafter refer as the bank, and the judgment creditors was as to the amount the bank owed Smith and its right to certain claimed credits. It was admitted by the bank that it had on general deposit to the credit of Smith on the date of the service of the writ of garnishment, to wit, October 17, 1927, the sum of $2,000; but it asserted the right of a set-off or credit against such deposit in the sum of $1,000, evidenced by a note of Smith's to it dated September 12, 1927, and due November 1, 1927. . This claim of lien on the deposit is based upon a stipulation in the note to the effect that the payee bank should have a lien upon any balance of Smith's deposit for its payment. The garnishers controverted these admissions and contentions of the bank and alleged that the bank at the time it filed its answer was indebted to Smith in a sum in excess of $2,000, the exact amount being unknown to them. Garnishers also denied that Smith owed the bank a $1,000 note at the time it was served with writ or when it answered, and further alleged that, if the bank had such note, it was completely secured by other property and securities of the maker, and for that reason the stipulated lien on deposit should not be allowed.

Judgment was entered against the bank in favor of the garnishers in the sum of $2,000, with interest at 6 per cent. The bank appeals.

No request for findings was made, and no findings of fact, stating the facts found and the conclusions of law separately, as contemplated by section 3819 to the Revised Code of 1928, were made. But in the judgment is found this recital: "The court . . . does find that at the time of the service of the writ of garnishment upon garnishee October 17, 1927, the said garnishee had in its possession money belonging to the defendant R. L. Smith, and was indebted to the defendant R. L. Smith, in the amount of not less than $2,800.00." It is argued that the finding is erroneous, for the reason that the records of the garnishee bank show that on October 17th Smith had a credit with the bank of only $2,000. Whether this statement is true or whether the bank's records correctly reflected Smith's credit with the bank on October 17th were questions of fact to be determined from the evidence introduced. It is the settled rule of this jurisdiction that, if the evidence conflicts on a given issue, the determination of the trier of the facts will be treated as conclusive on appeal. Morgan v. Krook, 36 Ariz. 133, 283 P. 287. It is not...