31 Ga. App. 789 | Ga. Ct. App. | 1924
1. While a ruling sustaining a demurrer to a plea or answer, not being a final judgment, will not of itself support a writ of error, yet where, upon the striking of the defendant’s pleadings, a final judgment is entered for the plaintiff, a writ of error will lie to review the
2. In a suit against a bank for a deposit, an answer admitting that the amount claimed by the plaintiff had been deposited as a joint deposit for the benefit of the plaintiff’s intestate and the one making the deposit, but denying that the defendant would be protected in paying out the amount sued for except upon authority of the legal representative of the one making the deposit, in addition to the authority of the plaintiff as legal representative, cannot be taken as a tender to the plaintiff of the amount sued for, such as would compel a judgment in his favor, although the answer also set forth that'“defendant is anxious to pay the sums mentioned, principal and interest, and now tenders same to the court, notifying plaintiff that defendant will be responsible for no interest after this date.”
3. Where a husband deposited in a bank a sum of money belonging to himself, in the name of his wife but with the understanding that all or any part thereof might be withdrawn either by himself or by the wife, but by no one else, thus reserving to himself a free right of withdrawal, but giving to the wife the same right, the effect was to make a joint deposit with the conditions stated attached thereto. Had the money been thus withdrawn by the wife or by the husband, as in Moore v. Citizens Bank of Ashburn, 21 Ga. App. 183 (2) (94 S. E. 90), the bank, under such conditions would in such disbursement have been protected against a suit by the legal representative of the other; but where the deposit remained intact and nothing was withdrawn by either the husband or the wife, both of whom subsequently died, the title to such moneys vested jointly in the estates of the husband and the wife. Under the banking act of 1919, article six, section 39 (Ga. L. 1919, p. 208); “when a deposit has been made, or shall hereafter be made, in any bank transacting business in this State in the names of two persons, payable to either, or payable to either or the survivor, such deposit, or any part thereof, or any interest or dividend thereon, may be paid to either of said persons, whether the other be living or not; and the receipt or acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.” In the instant case suit was brought, not by either of said joint depositors, but by the legal representative of the wife, after both had become deceased. A strict construction of the statute does not authorize such a procedure;
Judgment reversed.
