94 Neb. 108 | Neb. | 1913
The plaintiff began this action' in the county court of Richardson county against the defendant, the F. E. Flem
The intervener insists that the check of the commission company, which was paid by the intervener, creates an equity in the deposit in his favor as against the commission company, so that that deposit was not liable to attachment in the suit of a third party against the commission company. The plaintiff contends (1) that section 188 of the negotiable instrument act (laws 1905, ch. 83) applies, and that under that section the holder of a check has no equitable right in the deposit on which the check
Section 188 of the negotiable instrument act is as follows: “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check.” Before the enactment of that section this court held that the holder of a check might maintain an action thereon against the bank upon which it was drawn, if the maker of the check had a general deposit in the bank subject to check at the time the check was presented to the bank. Fonner v. Smith, 31 Neb. 107. The courts of some of the states held the same doctrine, but the supreme court of the United States and the courts of other states held that, ■under such circumstances, the holder of the check could not maintain an action against the bank, and that his right of action was against the maker of the check alone. Bank of the Republic v. Millard, 10 Wall. (U. S.) 152. This holding of the supreme court of the United States was expressly put upon the ground that the relation of depositor and banker is that of debtor and creditor. The moment the deposit is made it becomes part of the property of the bank, under a contract to repay the amount to
The order of the district court applying the deposit on the plaintiff’s judgment is reversed, and the cause remanded, with instructions to enter a judgment for intervener bank against the commission company for $1,200, with protest fees and interest from the date of the check, and order the garnishee, to pay the money in its hands into court to be applied on said judgment; all costs to be taxed against the plaintiff.
Reversed.