Wauer v. Bank of Pendleton

• Decision Date: 05 December 1933
• Docket Number: No. 22683.,22683.
• Citation: 65 S.W.2d 167
• Parties: EMMA WAUER, RESPONDENT, v. BANK OF PENDLETON, IN CHARGE OF S.L. CANTLEY, COMMISSIONER OF FINANCE OF THE STATE OF MISSOURI, APPELLANT.
• Court: Missouri Court of Appeals

65 S.W.2d 167

EMMA WAUER, RESPONDENT, v. BANK OF PENDLETON, IN CHARGE OF S.L. CANTLEY, COMMISSIONER OF FINANCE OF THE STATE OF MISSOURI, APPELLANT.

No. 22683.

St. Louis Court of Appeals. Missouri.

Opinion filed December 5, 1933.

Appeal from Circuit Court of Warren County. — Hon. W.C. Hughes, Judge.

AFFIRMED.

Geo. C. Dyer and Glover E. Dowell for plaintiff.

(1) One of the main points of defense in this case is, that the defendant was not properly named in the title of the cause. But, where, as in this case, it clearly appears from the allegations of the petition in what capacity the party named acted, and the character of the relief sought, the name of the party defendant, as it appears in the caption, may be amended so as to state the correct name, even after judgment and in the appellate court. Bank of Oak Ridge v. Duncan, 40 S.W. (2d) 656, 661; Hunter v. Kansas City Savings Bank, 158 Mo. 262, 271; Witte Iron Works v. Holmes, 62 Mo. App. 372; Green v. Supreme Lodge, 79 Mo. App. 179; Purde v. Gault, 19 Mo. App. 191; Bush v. Serat, 217 S.W. 865; Secs. 819, 821, 1099, R.S. 1929. (2) It is clear by the pleadings in this cause, and it was so understood by the Bank of Pendleton through the Commissioner of Finance in charge of its liquidation, that it was the intention to sue said bank through said commissioner, as provided by Section 5332, Revised Statutes of Missouri, 1929, and if any error was made in the title, it was not as to the party sued, but merely in describing the character of the party, which was supplied in the body of the petition. Bush v. Serat, 217 S.W. 865; Bank of Oak Ridge v. Duncan, 40 S.W. (2d) 656; State ex rel. v. Patton, 40 Mo. 530. (3) When defendant pleaded to the merits, and went to trial on the merits of the case, it submitted its person to the jurisdiction of the court. Mertens v. McMahon, 28 S.W. (2d) 456, 459; Cherry v. Wertheim, 25 S.W. (2d) 118. (4) Likewise, defendants demurrer to plaintiff's amended petition was a general appearance. Clark v. Grand Lodge, 43 S.W. (2d) 404. (5) Defendant entered its general appearance by serving notice to take depositions, and by taking depositions. State ex rel. v. Falkenheimer, 309 Mo. 224, 235. (6) When the Bank of Pendleton accepted money from plaintiff with the specific directions to invest it in United States Government Bonds, title to the money did not pass to the bank, but the bank thereafter held the money in trust for plaintiff, subject to the duty of investing it in Government Bonds as directed. Evans v. Peoples Bank, 6 S.W. (2d) 655; Greenfield v. Clarence Savings Bank, 5 S.W. (2d) 708. (7) The reception of deposits is within the strict scope of duties of the cashier and general manager of a bank, and the subsequent use of such money by the bank, and its refusal to account to the depositor therefor, amounts to a conversion on its part, and also gives the depositor the right to enforce against it a trust for the money. Rhinehart v. Peoples Bank, 89 Mo. App. 511, 515. (8) The agreement between plaintiff and Haake, the cashier of the Bank of Pendleton, made at the time the money was deposited by plaintiff that he was to purchase bonds for plaintiff, will control. Ozark Fruit Growers Association v. Bank of Aurora, 52 S.W. (2d) 430, 435; Evans v. Peoples Bank, 6 S.W. (2d) 655, 656; Central Coal & Coke Co. v. State Bank of Bevier, 44 S.W. (2d) 188, 190. (9) Special deposits are entitled to preference in payment although the funds were mingled with the general assets of the bank. Sec. 5575, R.S. 1929; Ozark Fruit Growers Assoc. v. Bank of Aurora, 52 S.W. (2d) 430, 436; Marshal v. Bank, 215 Mo. App. 365; Missouri Mutual Assoc. v. Holland Bank, 290 S.W. 100, 102.

W.B. Whitlow and Emil Roehrig for appellants.

(1) Defendants' motion to strike amended petition from files should have been sustained, for the reason that it is a substitution of a cause of action, and not an amended petition; and for the further reason that in the original petition the Bank of Pendleton is the defendant, and in the amended petition the Commissioner of Finance is the defendant, contrary to the statutes of the State of Missouri, and the amending of said petition came too late. See Sec. 5337, R.S. 1929; Bowersock Co. v. Trust Co., 298 S.W. 1049. (2) Where money is placed on deposit in a bank, either on checking account or on time deposit, the title to the money passes to the bank, and the relationship of debtor and creditor is created between the bank and the depositor, and in this case when the proceeds of the Treasury Certificates were deposited in the bank by plaintiff Wauer, the relationship was that of debtor and creditor, and the fact that the cashier of the bank promised to buy bonds did not change that relationship. Butcher v. Butler, 134 Mo. App. 61; Horigan Realty Co. v. First National Bank, 273 S.W. 772-775; Ellington et al. v. Cantley et al., 300 S.W. 529; Boswell Post of American Legion v. Farmers State Bank, 61 S.W. (2d) 761. (3) The negligence, carelessness and delay of plaintiff in reporting any loss of money, or any irregularity on behalf of the cashier of the bank, constituted such laches on her part that she in large measure permitted such irregularities to go on for a period of over three years, and a court of equity should not now allow her to recover in full, when all depositors of said bank were victims of the deceit and wrongdoings of the cashier carried on without the knowledge or consent of the other officers and directors. 16 Cyc. 150-154. (4) This was not a special deposit but a general deposit. Butcher v. Butler, 134 Mo. App. 61; Boswell Post of American Legion v. Farmers State Bank, 61 S.W. (2d) 761. (5) The bank and its directors were not responsible for the dishonest acts of the cashier, especially when the plaintiff in this case had had it in her power since 1927 to discover the dishonest acts of the cashier and save the banking institution and its depositors.

SUTTON, C.

This is an action in equity to establish a preferred claim against the Bank of Pendleton, an insolvent corporation, in charge of S.L. Cantley, Commissioner of Finance, for liquidation. The action was brought to the January term, 1932, the petition being filed on October 5, 1931.

The action as originally brought was styled "Emma Wauer, Plaintiff, v. Bank of Pendleton, a corporation, and S.L. Cantley, Commissioner of Finance of the State of Missouri, in charge of the property and affairs of said Bank of Pendleton, for liquidation, defendants."

No summons was ever issued in the case. However, following the filing of the petition, on December 24, 1931, the defendants caused notice to take depositions in the cause to be served upon the plaintiff's attorneys, and pursuant to such notice depositions were taken at the office of the clerk of the Circuit Court of Warren County, on December 30, 1931, all the parties appearing by their attorneys at the taking such depositions. Afterwards, on December 30, 1931, defendant Bank of Pendleton filed its plea in abatement, stating as grounds for the abatement of the cause that no summons had ever been issued against the Bank of Pendleton and the bank had never entered its appearance. On January 8th, during the January term, 1932, defendant S.L. Cantley, as Commissioner of Finance of the State of Missouri, filed his answer, consisting of a general denial. On January 15, 1932, the plea in abatement of defendant Bank of Pendleton was sustained, and the cause was dismissed as to said defendant.

On January 25, 1932, the plaintiff, with leave of court, filed her amended petition, which was styled as follows: "Emma Wauer, Plaintiff, v. S.L. Cantley, Commissioner of Finance of the State of Missouri, in charge of the property and affairs of the Bank of Pendleton, Pendleton, Missouri, for liquidation, defendant." The amended petition is otherwise substantially the same as the original petition. It alleges that the Bank of Pendleton is a banking corporation organized and existing under the laws of the State of Missouri, and as such banking corporation was engaged in the general banking business at Pendleton, in Warren County, Missouri, until December 15, 1930, when it was placed in the hands of S.L. Cantley, Commissioner of Finance of the State of Missouri, for liquidation, and that ever since December 15, 1930, the said S.L. Cantley, as such Commissioner of Finance, has been and now is in charge of the property and business of said Bank of Pendleton, and in such capacity is liable to be sued on all lawful claims against said bank; that on November 29, 1927, plaintiff received one United States Treasury check for $1,000, and on December 14, 1928, received one United States Treasury check for $3,000; that she endorsed said checks and delivered them to Otto F. Haake, cashier of the Bank of Pendleton, at its banking house at Pendleton, in Warren County, Missouri; that upon the delivery of said checks to said bank said cashier agreed to cash said checks for plaintiff and purchase for her United States Government Bonds for the said sum of $4,000; that plaintiff has never received said United States Governments Bonds, and has not received the said sum of $4,000, or any part thereof, from said Bank of Pendleton, although the said Bank of Pendleton caused such checks to be cashed and received the money therefor, and has withheld the same from plaintiff, and has wrongfully and unlawfully converted said sum of $4,000 of the moneys belonging to plaintiff to its own use and benefit; that on or about June 10, 1927, plaintiff paid to said Bank of Pendleton the sum of $500 for the purpose of having said bank purchase for her a United States Government Bond of the denomination of $500; that said Bank of Pendleton received the said sum of $500 from plaintiff, and it was agreed by said bank with plaintiff that it would purchase said bond for her for the amount so paid; that said United States Government Bond was never delivered to plaintiff, and plain...