57 Neb. 504 | Neb. | 1899
Anna B. Saunders, on August 19, 1893, brought this suit in the district court of Johnson county against the Tecumseh National Bank. In her petition filed on that date Mrs. Saunders alleged that in the year 1889 a corporation by the name of Russell & Holmes was conducting a banking business in the city of Tecumseh, Nebraska; that in said year she deposited with said bank, or loaned to it, $400, — $150 at one time, and $250 at another, for each of which sums the said bank issued to her-an ordinary certificate of deposit, drawing six per cent interest; that the moneys represented by said certificates of deposit had not been paid to her. To show the liability of the Tecumseh National Bank to her for tbe moneys represented by said certificates, of deposit
“Plaintiff further states that afterwards, to-wit, on or about the 13th of April, 1890, the bank of Russell & Holmes went into liquidation and closed its said business, ceased its organization as said bank of Russell & Holmes, and thereupon afterwards, to-wit, on the 14th day of April, 1890, the defendant was duly organized and created a banking corporation under and by virtue of the various banking laws enacted by the congress of the United States, known and designated as the National Banking Acts,’ and is at the present time carrying on a banking business in Tecumseh, Nebraska, under the name and style of the Tecumseh National Bank. Plaintiff further alleges that this defendant, so organized and created a banking corporation as aforesaid, came into possession of and received as successor to the bank of Russell & Holmes the property, assets, emoluments, business, and good-will of said bank of Russell & Holmes, and also the said sums mentioned in plaintiff’s first and second'causes of action, and deposited with the said last named bank for this plaintiff, and this defendant thereupon became liable to the plaintiff for said deposits so received, with interest thereon at the rate of six per cent per annum. The plaintiff further alleges that the business of this defendant was and is done and carried on in the same building and same room previously occupied by the bank of Russell & Holmes for the transaction of its business, and that all of the stockholders and officers of the bank of Russell & Holmes became stockholders and officers of this defendant, upon its creation, and, as such officers, managed, controlled, and transacted its business. This plaintiff further alleges that the bank of Russell & Holmes is wholly insolvent and has no money or other property with which to pay those who had formerly made deposits with them.”
To this petition the national bank filed an answer. A
1. We think that the facts pleaded in this amended petition which were not pleaded in. the original petition constitute a cause of action against the Tecumseh National Bank separate and distinct from the cause of action attempted to be stated against it in the1 original petition. • The original petition proceeded upon the theory that because the national bank had become possessed of all property and assets of the bank of Russell & Holmes as a matter of law, it became liable for the debts of the bank of Russell & Holmes. The administrator, by the amendment incorporated into the petition, seeks now relief from the national bank on the ground of fraud. In other words, the new cause of action is an action ex delicto, while the original cause of action attempted to be pleaded was in the nature of an action ex contractu.
In Phelps v. Illinois C. R. Co., 94 Ill. 548, the plaintiff sought damages against the railroad company upon its common-law liability for refusing to receive grain ten
Smith v. Missouri P. R. Co., 50 Fed. Rep. 760, was an action against the railroad to recover damages for causing the death of one of its employes. The first petition charged that the company caused the employe’s death by negligently employing an engineer known by it to be incompetent. Subsequently the plaintiff amended his petition, seeking to recover damages against the railway company for the employe’s death upon the ground that the engineer in charge of the train was guilty of negligence, and the court held that the amendment was a new and an independent cause of action from that first stated.
In Lumpkin v. Collier, 69 Mo. 170, a sheriff had in his possession an execution. The plaintiff therein, to induce the sheriff to seize certain personal property, executed to him a bond agreeing to indemnify him from any liability he might incur by reason of seizing and selling the property. The claimant of this property subsequently brought a suit on this bond for damages for a breach of its conditions. Afterward the claimant filed an amendment to his petition, seeking to recover damages from the sheriff for the wrongful sale of the property, and from the obligors on the bond for their instigation and procurement of such sale. The court held that the first cause of action in the petition was ex contractu; that the amendment was a cause of action ex delicto, and that there were two separate and independent causes of action stated in the petition.
In People v. Judge, 35 Mich. 227, the plaintiff in his pe
The cause of action pleaded by the administrator in his amended petition against the national bank arose more than four years before the amended petition was filed, and the amended petition was filed more than four years after the administrator’s intestate was in possession of all the facts which, it was alleged, constituted a fraud upon the part of this national bank which made it liable in this action, and therefore the cause of action stated in the amended petition was barred when that amended petition was filed. (Code of Civil Procedure, sec. 12.) Since the original petition did not state a cause of action against the defendant in error, and since the new cause of action incorporated into the amended petition was barred when that petition was filed, it follows that the judgment of the district court was right and must be affirmed without an examination of the various assignments of error argued by counsel for plaintiffs in their briefs.
Judgment affirmed.