83 P. 975 | Idaho | 1907
This action was instituted by the plaintiff Richard Cunningham as trustee for a number of persons named in the complaint, against the Bank of Nampa, Ltd., a corporation, J. C. Nichols, sheriff of Canyon county, and the United States Fidelity and Guaranty Company, a corporation, bondsman for the sheriff, to recover the sum of $913.24, the amount of damages claimed to have been sustained by the cestuis que trustent. The defendants demurred
That Richard Cunningham is an attorney at law, and as such has collected the money sought to be recovered from different persons on notes and accounts in favor of his several clients for whom he was acting as agent or trustee in the collection and transmission of the proceeds of the several notes and accounts. lie alleges that he had an account with the defendant bank in which he deposited all the moneys collected, by him for his clients in the name of “Richard Cunningham, Atty.” It is alleged that this was a special account of trust funds against which he checked in payment of the various clients whose moneys he had therein deposited. It is charged that the bank had knowledge and notice of the nature and character of the fund thus deposited, and that the same was not the money or property of Cunningham. During this time, while the money was still in •the bank, one Henry W. Leman, who held a judgment against Cunningham in the state of Nebraska, brought an action on such judgment in Ada county, Idaho, and caused a writ of attachment to be issued against the property of Cunningham, and delivered that writ to the sheriff of Canyon county, who served it on the defendant bank and attached the fund and account therein held in the name of “Richard Cunningham, Atty.” Plaintiff Cunningham thereafter demanded in the name of his alleged cestuis que trustent the delivery of the money theretofore deposited and upon which the writ of attachment had been levied. The bank refused to turn over the fund and a like demand was made of the sheriff, who also refused, and thereupon this action was commenced. The bank demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Nichols and the guaranty company demurred upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and also upon the ground that there was a misjoinder of parties defendant, in that the bank was not a proper party defendant in the action. The demurrers were
The only question to be determined by us is: Does the complaint state a cause of action? For the purpose of determining the question before us, all the material allegations of the complaint must be taken as true. It is a fundamental principle both of law and justice that .the debtor’s property, and his property alone, is liable for the payment of his debts. It is conceded that Cunningham was indebted to the attaching creditor. If the money and account in the defendant bank was the property of Cunningham, it was unquestionably liable for the payment of his debt and subject to attachment therefor. If it was not his money and property, it is equally clear that it was not liable for his debt. If Cunningham after collecting this money had taken it in kind as collected to the bank for the purpose of purchasing drafts to his several clients for remittance to them, and while the money was on the bank counter and prior to the receipt of the draft and delivery of the money to the bank, it had been attached by the sheriff, it would not have been seriously contended, we apprehend, that the money could be held under this attachment for the payment of a debt owed by Cunningham. The deposit of the money by Cunningham with the bank could give him no better title to it than he had before the deposit, and certainly an attaching creditor cannot, through his attachment process, acquire any better title to the property than the debtor has. (Thomas v. Hillhouse, 17 Iowa, 67.)
Some confusion has been injected into the case by reason of a discussion as to the liability of the bank to pay the fund to Cunningham upon his check. The word “Atty.” after the name of “Cunningham,” as the account was entered in the bank, was a mere descriptio personae, and did not serve in any manner to disclose the name of his principals or the cestuis que trustent, and as between Cunningham and the bank it was unquestionably the duty of the bank to pay the money to Cunningham upon his demand or the presentation of his check at any time prior to the service
It has been argued that the bank was improperly joined as a party defendant. We do not think this ground of demurrer well taken for the reasons above stated. If upon the trial the deposit should appear to be still in the hands
It has been argued that the plaintiff Cunningham could not maintain this action as trustee for the several parties named without also joining the cestuis que trustent in their individual capacities. The case coming here on demurrers, and that question not having been raised by the demurrers or in any other proper manner, we are not called upon to decide that question. It is clear, however, that the several beneficiaries named are' proper parties plaintiff (First Nat. Bank v. Hummel, 14 Colo. 259, 20 Am. St. Rep. 257, 23 Pac. 986, 8 L. R. A. 788; Rev. Stats., secs. 4090, 4092), and it would seem upon first blush that they are necessary parties.
As we view this case, the demurrer should have been overruled. None of the grounds alleged in the demurrers were well taken. The judgment will be reversed and the cause remanded for further proceedings in harmony with the views herein expressed. Since the question of parties plaintiff will undoubtedly arise again in the lower court, we suggest at this time that the plaintiff be allowed, if he so desires, to amend his complaint by bringing in each cestui que trust in his individual capacity as a coplaintiff.
Costs are awarded in favor of the appellant.
