Wynn v. Tallapoosa County Bank

• Decision Date: 26 February 1910
• Citation: 168 Ala. 469,53 So. 228
• Parties: WYNN v. TALLAPOOSA COUNTY BANK.
• Court: Alabama Supreme Court

53 So. 228

168 Ala. 469

WYNN v. TALLAPOOSA COUNTY BANK.

Supreme Court of Alabama

February 26, 1910

Rehearing Denied June 30, 1910.

Appeal from Chancery Court, Tallapoosa County; W. W. Whiteside Chancellor.

Bill by the Tallapoosa County Bank against W. H. Wynn, administrator d. b. n. of F. A. Vaughan, for an accounting and other relief. From a decree for complainant, respondent appeals. Reversed and remanded.

Sayre J., dissenting in part.

James W. Strother, for appellant.

Lackey & Bridges, for appellee.

MAYFIELD J.

Appellee filed this bill against the administratrix of its deceased cashier. Pending the suit she died, and the suit was revived and proceeded against appellant as administrator de bonis non.

The bill in the most general terms alleged that intestate was a stockholder, holding 140 shares of its stock; that for several months prior to his election as cashier, which occurred in the year 1895, he by some means or contract with its former cashier, Wright, unknown to complainant bank acted as its cashier--that is, during this time he was its cashier de facto but not de jure; that early in that year he was duly elected cashier, and was re-elected annually to such place, and continued so to act, from that time uninterruptedly till his death, which occurred in July, 1902; that during this time (without specifying any dates or any amounts other than the estimate in gross) he made numerous loans of the funds of the bank, without authority and in violation of the by-laws of the bank, and in violation of his duty as cashier, amounting in the aggregate to more than $14,000; that he permitted overdrafts, during this time, amounting in the aggregate to more than $1,700, and that said overdrafts and loans were never paid to complainant; that at his death he was short in his cash account with the bank in the sum of more than $1,500, and was short in his account with bills receivable in the sum of more than $3,700. Demurrers being sustained to the original bill, because of the generality of its averments, it was amended by making more specific the averments as to some of the items claimed in the original bill. It was also shown that the intestate cashier was not only a large stockholder in the bank, but that he was also a large depositor therein; and that complainant paid some checks to his administrator, drawn against this deposit, after his death--the amount of which is not stated--but finally declined to pay any more until a settlement of the defaults of intestate, leaving $4,902.77 to the credit of the account. The personal representative having brought suit in a court of law for the balance of the deposit, the complainant, by a petition filed in connection with its bill pending this litigation, had this action in the law court enjoined pending this suit. The bill in a way offered to deliver to the personal representative some of the notes, mortgages, etc., alleged to have been taken without authority and in violation of the by-laws and of his duty as cashier, and to transfer same. The complaint also seeks to recover attorneys' and solicitors' fees in bringing this suit, and in defending the claims of the bank to certain collaterals in a bankruptcy proceeding against one Banks, a customer of the bank, who had deposited the collaterals, accepted and taken by the intestate cashier; and also to charge his estate as to attorneys' fees and costs of suit paid by the cashier, during his administration, which were claimed to be unauthorized and unwarranted. In short, the complaint seeks to make the cashier or his estate liable for many financial losses the bank sustained during his seven years' administration. True, each one is, in general terms, alleged to be on account of his negligence or failure to perform his duty as cashier.

It conclusively appears from the bill, answer, and evidence that he had the entire and complete control of all the affairs of the bank during these seven years; the directors and stockholders seem to have had implicit and unlimited confidence in his ability and integrity; notwithstanding the by-laws required the cashier to make a bond in a large sum, to secure the faithful performance of his duties as such officer, none was required of him; and notwithstanding the by-laws provided for a discount board of three directors, who, with the cashier, were to pass upon all loans of more than $250, and such board was appointed, he was always one of the members of that board, as well as the cashier, and the other members are shown to have intrusted the entire matter of passing upon loans and securities to him, never paying the least attention thereto unless called upon by him. No complaint appears to have ever been made by the board of directors or by the stockholders, as a body or individually, during his lifetime, and his continuous, sole and exclusive management of the affairs of the bank for seven years. Neither the president nor the vice president of the bank seems to have paid the least attention to its management during these seven years, except as requested so to do by the cashier. The only further supervision that they or the directors or the stockholders seem to have exercised, during these seven years, was to annually (and sometimes oftener) hold meetings and authorize the cashier to make a loan of money to the bank, but never by it, and to declare a dividend, annually, of 10 per cent. Occasionally they would authorize the sale or purchase of real property, by or for the bank, change the by-laws, or elect officers. But in no instance do they appear of record to have authorized a loan by the bank, to have approved or disapproved of any loan made by the cashier, to have directed security to be taken, or to have disapproved of that taken by the cashier. The bill seeks an accounting, to foreclose a lien on the stock of its deceased cashier, and also upon his deposit in the bank. The respondent answered the amended bill, denying in full all of its equities, incorporated demurrers in the answer, and set up several defenses specially by pleas. These defenses set up that the by-laws were habitually and entirely ignored and disregarded by the directors of the bank and all officers of the bank; that everything done by the cashier was done with the full knowledge, consent, and ratification of the board of directors, and that the bank is therefore estopped to deny his authority to do what he is alleged to have done; that the claims or demands sought to be enforced are barred by the statute of limitations and of nonclaim; that the demands sought to be enforced in this suit are alleged to grow out of torts committed by intestate during his lifetime; and that the causes of action did not survive his death, and are not claims or demands enforceable against his estate in a court of law or equity. The chancellor overruled the demurrers to the amended bill, and held the special pleas insufficient; and the cause being submitted on all the pleadings and much proof by both parties, the chancellor decreed the complaint to be entitled to the relief prayed, and referred the matter to the register to ascertain and report the amount due the complainant from the respondent upon each of the items claimed and set forth in the bill; and declared a lien in favor of the complainant on the capital stock standing in the name of the intestate, and upon his individual deposit for the payment of whatever amount complainant might be entitled to recover on account of the matters and things set forth in the bill. The register, on said reference, ascertained and reported the amount due from respondent to complainant, upon the various demands, to be, in the aggregate, $21,014.43. This amount was slightly reduced by the chancellor, by reason of a mistake in arithmetic, to $20,347.71, and as thus corrected was affirmed; and a decree was rendered against the respondent for that amount, and a lien declared upon the 147 shares of stock and upon the deposit, and a further reference ordered, to ascertain the amount of the deposit and interest thereon and whether dividends had been declared on the stock since the death of intestate. From this decree and all others, respondent appeals, and assigns numerous errors, many of which (but only a small part of those assigned) will be here considered.

The first question to be disposed of, however, is not one of those assigned, but is discussed only by appellee in its brief. It is as to whether or not this appeal can be entertained. No motion was made to dismiss the appeal. The case was argued and submitted without objection, but in a subsequent brief it is insisted that there are jurisdictional questions involved, which cannot be waived. It is therein insisted that many of the interlocutory decrees appealed from were rendered many months before, and some many years before the appeal was taken. And it is insisted that the last decree is not a final one--one which will support an appeal within a year. If the record showed that there was no final decree rendered within a year before the appeal was taken, this appeal could not be entertained, even by consent; but the record shows a decree which is final in such sense as to support an appeal. The decree of April 5, 1907, confirming the report of the register and the former decree, and decreeing "that complainant have and recover of the respondent, W. H. Wynn, as administrator de bonis non, the said sum of $20,347.71, together with the costs which have not been heretofore otherwise taxed." These decrees are both final, in such sense as to support this appeal. The fact that a further reference was directed, to fix the amounts, does not affect their finality in so far as it is necessary to support an appeal. This exact question has been time and time again...