Jones v. Bank of Carrollton

71 Miss. 1023 | Miss. | 1894

Woods, J.,

delivered the opinion of the court.

The demand of appellee against appellant’s intestate was not of such a character as required its registration within one year after the first publication of notice to creditors to present their claims. It was a contingent liability, whose existence was dependent upon a fortuitous event, which did not happen until the year had expired. It seems impossible to see how the oath prescribed by § 2027, code 1880, could have been made and indorsed upon the contingent demand, if any officer of the bank had been found rash enough to make the venture and incur the hazard of so doing.

Holman was not an incompetent witness on the trial of this cause below. He was not testifying to establish his own claim against the estate of the decedent, which originated during the life-time of the deceased, or any claim which he had transferred since the death of such decedent. The contention of appellant’s counsel is that Holman was incompetent as a witness to testify to establish the bank’s claim, because it was his claim originally, and had been transferred to the bank, after the death of appellant’s intestate, by operation of law, the bank having been compelled to pay that sum to Holman, by a judgment of the proper court, whereby it became entitled to repayment out of the estate of the deceased. But the learned counsel misconceive the facts. Holman had no claim against the bank’s cashier. He did not deal with the servant of the bank, but with the bank itself, and his demand for the loss of his funds intrusted to the bank was against it. He had successfully asserted his claim upon the bank, and had been fully paid and satisfied by it after judg‘ ment. At the trial of this cause, as well as at the date of its institution, he had no claim against any one on account of the transaction complained of in the present case. His claim against the bank and the bank’s claim against its cashier arose out of one and the same transaction, but they were two distinct claims, and not one claim transferred, by operation of law, from Holman to the bank, after the cashier’s death. His claim against his debtor had been fully paid, and, the contingency having arisen whereby the bank’s claim against its servant came into existence, Holman was a competent witness for the bank in its suit against its debtor.

Outside of these two legal questions, the controversy will be found to depend for its determination upon the facts and circumstances solely. These facts and circumstances have liad anxious and repeated examination. It will not be extravagant to say that the bank’s case is made out, if made out at all, by the evidence of one witness. The evidence of this witness is clear, positive and overwhelming, if worthy of medence. The effort of the appellant is to demonstrate its untrustworthiness, not by any direct attack upon the character of the witness, or by countervailing evidence upon the disputed transaction. The zeal, the learning, the skill of the able counsel for appellant are directed to a masterly arraignment of the credibility of the witness, in the light of the suspicious circumstances attendant upon the testimony. and conduct of the witness as made out and disclosed by himself. We are frank to say that -there are circumstances exciting suspicion and distrust, chiefest of which is the utterly indefensible official misconduct of the witness in concealing the fact of his possession of the- railroad tax funds from the board of supervisors at its March meeting, and his counting that large sum, to hide his deficit, in other funds. But, despite the suspicions engendered, we cannot say that the testimony of the witness is either false or incredible wholly. lie is supported by the conceded reputation of an honorable life hitherto. His version of the transaction is not so unreasonable as to make it incredible, in view of the custom and course of dealing between himself and the bank, and some strongly corroboi’ative circumstances appear in the record. He did not wait until the cashier was dead before making his loss known; but, while that official of the bank was yet alive and in health and strength, the witness began his suit, and with but brief delay, for the recovery of his money. That it was his practice to withdraw all funds from the banks when he was to make his count before the board of supervisors, seems fairly made out by the books of both banks where he deposited. It is certain, too, that in one other instance at least, he redeposited in bank a large sum drawn out for count before the board of supervisors, and received, as the sole evidence of such redeposit, his check given the bank when he drew out the money — a check stamped “paid” on its face, with the official stamp of the bank, and pierced with the peculiar hole made by the bank’s file-hook — just as in the transaction which gave rise to this litigation, as deposed to by the witness.

It is well settled that the decree of the court below must be regarded as presumptively correct, and that we will not be warranted in reversing it on the facts, unless convince, d that it is opposed to the preponderance of the evidence. A painfully anxious and exhaustive consideration of the evidence in the case fails to satisfy us that the decree is not supported by sufficient evidence, and it must, therefore, be

Affirmed.