Womack v. First Nat. Bank of Guntersville

• Decision Date: 21 May 1959
• Docket Number: 8 Div. 962
• Citation: Womack v. First Nat. Bank of Guntersville, 113 So.2d 194, 269 Ala. 411 (Ala. 1959)
• Parties: Viola WOMACK, as Executrix, etc. v. FIRST NATIONAL BANK OF GUNTERSVILLE.
• Court: Alabama Supreme Court

Page 194

113 So.2d 194

269 Ala. 411

Viola WOMACK, as Executrix, etc. v. FIRST NATIONAL BANK OF GUNTERSVILLE.

8 Div. 962.

Supreme Court of Alabama.

May 21, 1959.

Rehearing Denied June 25, 1959.

Jas. H. Countryman, Attalla, for appellant.

Lusk & Lusk, Guntersville, for appellee.

MERRILL, Justice.

This is an appeal from two orders of the Circuit Court of Marshall County. The first order was entered on August 30, 1958, and was an order made pursuant to Tit. 7, § 1179, Code 1940, interpleading Mary Cox against the plaintiff, Viola Womack, as executrix of the last will and testament of Lemuel Cephen Lewellen, and discharging from liability The First National Bank of Guntersville. The second order was entered on September 26, 1958, and was an order overruling Viola Womack's amended motion to set aside the order of August 30th.

Since the pleadings are numerous and there are many judgment entries, we list the pertinent ones chronologically:

October 23, 1957--Lemuel Cephen Lewellen, the original plaintiff, filed a two count complaint in general assumpsit agaisnt The First National Bank of Guntersville for $3,000 had and received and demanded a trial by jury.

October 25--Mary L. Cox filed a three count complaint against the bank for the same sum of money.

October 26--The First National Bank of Guntersville filed a sworn interpleader against Lemuel Cephen Lewellen alleging that it was the defendant in the original suit; that on August 27, 1956, there was deposited with it the sum of $3,000 to the account of Mary Cox and Lemuel Cephen Lewellen; that on October 10, 1957, James H. Countryman [attorney of record for appellant, Viola Womack] presented to defendant a power of attorney purporting to have been executed by Lem Allen and authorizing James H. Countryman to withdraw all money on joint account with Mary Cox at the defendant bank, and that the defendant refused to pay over the $3,000 to James H. Countryman. The interpleader further alleged that on or about October 11, 1957, and again on or about October 14, 1957, Mary Cox, not a party to the original suit and without collusion with the bank, demanded of the bank that she be allowed to withdraw the money, which demand was also refused by the bank. The interpleader then tendered the fund into court and therewith deposited the $3,000 with the clerk of the circuit court, praying that an order be issued to Mary Cox causing her to come in and defend the action.

October 28--The First National Bank of Guntersville filed an interpleader against Mary Cox, averring, inter alia, that Mary Cox had demanded payment of the sum that Lemuel Cephen Lewellen, without collusion with the bank, also demanded the fund, and praying that an order be issued requiring him to come in and defend the action.

November 13--Lemuel Cephen Lewellen filed a seven ground demurrer to the bank's interpleader as against him. It does not appear from the record that these demurrers were ruled on by the court.

November 21--Mary Cox filed a sworn answer and cross-complaint to the interpleader filed by the bank. In the unsworn part of her cross-complaint, Mary Cox avers that she is a cousin of Lem Allen, who is the same as the original plaintiff in the case, and that he lived in the home of claimant for many years. The cross-complaint further alleges that the original plaintiff gave the claimant, Mary Cox, the money in question requesting that claimant and he go to Guntersville, Alabama, and place the money in a bank. It is further averred that plaintiff had lost some money just prior to the trip to Guntersville and that he insisted that his name appear jointly with the claimant's, but that plaintiff's name be changed (from Lem Allen to Lemuel Cephen Lewellen) so that neither he nor Mary Cox would be molested in the enjoyment of said deposit. It avers further that the money was deposited in the savings account in the names of plaintiff and claimant, with the right of survivorship, and that the claimant has made demand on the bank for the money and has been refused.

November 25--Lemuel Cephen Lewellen amended his complaint to add three counts. One of the counts was for $1,000 damages for breach of contract in failing to pay the $3,000 to plaintiff's attorney and agent when properly demanded. Another count, appellant says, is for breach of trust, and the third count is for damages for negligently failing to pay the fund unto James H. Countryman.

November 29--The bank refiled its answer and interpleader to plaintiff's amended complaint.

December 11--Lemuel Cephen Lewellen filed demurrers to the cross-complaint filed by Mary Cox.

February 20, 1958--Viola Womack filed a motion to revive Lemuel Cephen Lewellen's suit in her name, showing that he had departed this life and that she had been appointed executrix of his last will and testament.

February 28--Judgment entry by the court sustaining demurrers of the appellant filed December 11, 1957, to the answer and cross-complaint of the claimant, Mary Cox.

March 10--Mary Cox filed an amendment to her cross-complaint averring, inter alia, that the money was deposited to the account of 'Mary Cox and Mr. Lemuel Cephen Lewellen' whereas, the demand for withdrawal was made under a power of attorney allegedly executed by one 'Lem Allen.' The amendment further alleged that the purported power of attorney is invalid because of undue influence exercised by Luther Medline and other persons, not then known to Mary Cox, in that Lem Allen was a person of feeble health; that Luther Medline and the others being in a confidential relationship, having dominion and control over his person, took advantage of his condition and induced or aided him to put his mark on the alleged power of attorney. It was further averred that the mark of Lem Allen was not voluntary; that the power of attorney was executed by mistake and unintentionally, and that for many years, Lem Allen had lived in the same house with her and that she took care of and looked after him along with her mother. It was further stated that when Lem Allen was a young man he sustained an accident which caused him to be paralyzed and to lie flat on his back for a period of approximately eleven years, and that subsequent thereto and for approximately the next eleven years, he moved about and during this time he sold pencils and other minor articles on the streets of the City of Gadsden and the other municipalities in Etowah County and apparently accumulated some monies. The amendment stated also that Lem Allen gave to the claimant the monies deposited in the bank and that he released all control in and to the money and that further, he gave his sister, Viola Womack, the home in which he resided.

March 13--Viola Womack filed a motion to produce, moving the court to order Mary Cox to produce the deposit slip.

Judgment entry by the court ordering the production of the deposit slip.

Viola Womack filed demurrers to cross-complaint of Mary Cox, as amended.

Judgment entry by the court sustaining demurrers of the appellant filed March 13, 1958, to the amended cross- complaint of the claimant, Mary Cox.

March 19--Mary Cox amended her claim averring that the fund in question has, at all times, been owned by her.

Viola Womack reassigned her original demurrers and demurs further to the cross-complaint of Mary Cox, as last amended.

August 12--The bank reassigned its answer and interpleader to the complaint, as last amended, on March 7, 1958.

August 16--Viola Womack filed a plea and answer to the bank's interpleader denying the averments of the interpleader that there was deposited with it 'the sum of $3,000.00 to the account of Mary Cox and Mr. Lemuel Cephen Lewellen,'; but instead averred that the only contract existing between plaintiff's testator and the bank was one evidenced by the deposit slip as follows: 'August 27, 1956 Mrs. Mary Cox and/or Mr. Lemuel Louellen, Attalla, Ala. 3000.00 Three thousand dollars. Payable to either or the survivor of either Dup. J. T. Sulzby VP 3000.00.' The plea and answer then avers that under the terms and the conditions of the deposit, it was the bank's duty under §§ 128(2) and 128(2a), Tit. 5, Code 1940, as amended, to pay over to Viola Womack's testator the fund upon his demand without the consent or concurrence of Mary Cox. It is further alleged that the proper demand was made on October 10, 1957. The plea and answer further denied that the bank was without collusion with Mary Cox and that the bank's interpleader was a device whereby the bank sought to escape liability for its breach of contract with plaintiff's testator. It alleged further that the bank prepared an erroneous ledger sheet which showed only a joint account between Mary Cox and the deceased, the legal import of which would be to make the money subject to withdrawal only upon the joint authority of both depositors and then only during their joint lives, and making the estate of the party dying first a tenant in common with the survivor. The plea and answer then alleged that the bank was without legal right to interplead and that before the filing of the original action and before the filing of the interpleader, the bank became aware of the true provisions of its contract with the deceased and of its error in substituting a different contract for the true one; but that it persisted in its refusal to comply with the terms of the contract and that, therefore, the defendant does not now stand indifferent toward the plaintiff and Mary Cox, the claimant, as is required by law as a condition precedent to the right to interplead.

August 22--Judgment entry by the court taking the cause under advisement in order to determine the sufficiency of the interpleader.

August 27--Mary L. Cox amended her complaint adding two counts. One count was for breach of contract and the other was for negligence in failing to pay the money to Mary L. Cox upon proper demand.

August 30--Judgment entry by the court consolidating the...