82 Mo. App. 301 | Mo. Ct. App. | 1900
The plaintiff Lindsay is the owner of a judgment against Tudor E. Brooks. An execution was ■ issued on this judgment and the Continental Bank of St. Louis was summoned as garnishee. In the denial of the answer of the garnishee Lindsay averred that at the time of the service of the garnishment Brooks had on deposit in said Bank the sum of $814.22. This was denied by the bank in its reply. By consent of parties there was a reference in the case. On the trial before the referee, Lindsay introduced evidence tending to prove that at the time the garnishment was served the aforesaid sum was deposited with the garnishee to the credit of Tudor E. Brooks, agent. The evidence of the garnishee tended to prove that Brooks was engaged in selling merchandise on commission; that at the time he opened the account with the bank he informed its officers that he was bankrupt and had no money of his own; that the business he proposed to do with the bank would be as agent of various principals, and that the deposit account was opened with him as such agent. The bank introduced Brooks as a witness, who corroborated the testimony of the officers of the bank, and he further testified in a general way that all of the money then on deposit belonged .to his principals, except $309, which belonged to his wife. He was unable to state to whom the balance of the money was due, or in what amounts, alleging as an excuse that his books had been burned, and therefore could not state the condition of his accounts with his various principals. He admitted that at times he drew checks on ■the bank account for his individual uses, but made good the deficits in a short time. Concerning the $309, alleged to be due his wife, he stated that ibwas derived from a legacy due her from a brother; that a sister of his had remitted the
It was conceded at the hearing that none of the alleged principals of Brooks had prior to the garnishment or since made any claim or demand for the money in question. Counsel for Lindsay argue that in the -absence of such demand or notification, it was not permissible for the bank to interpose the rights of the alleged owners of the fund in defense of the garnishment. Whatever may be the-rule elsewhere, and whatever may be our individual opinions on the subject, the question has been otherwise determined both by the supreme court (McKittrick v. Clemens, 52 Mo. 163), and this court (Brown v. Gummersell, 30 Mo. App. 341). Therefore this point must be ruled -adversely to Lindsay.
We extract the following from the report of the referee: “Under the -evidence in this case, in my opinion, the deposit of the money under the name of Tudor E. Brooks, agent, together with the fact that at and before the time said deposit was opened, Tudor E. Brooks notified the officers of the defendant that the money deposited in that account would be funds belonging to persons other than himself, and in which
“This, then, in my opinion, threw the burden upon the plaintiff in this case of showing that the funds on hand at the time of the garnishment was the property of Tudor F. Brooks.”
This ruling of the referee was in my judgment erroneous. The facts stated furnished evidence only of notice to the bank that the money did not belong to Brooks. The conclusion of the referee, however, was justified by an expression in the opinion of the supreme court in Gregg v. Bank, supra, but the doctrine of that case is overthrown by the subsequent case of Eyerman v. Bank, 84 Mo. 408. In the Gregg case the execution was against the St. Louis, Hannibal and Keokuk Railroad Company. The money garnished was deposited in the bank to the credit of “W. W. Walker, supt.” The bank admitted the deposit, but disclaimed knowledge of the true ownership of the money. Gregg averred in his reply that the money belonged to the defendant in the execution. On the trial Walker testified that he was the superintendent of the railroad company, and that the money belonged to his prin- , cipal, and that he had no interest whatever in it. The plaintiff asked the court to instruct that if the jury found that the money belonged to the railroad company, and that Walker disavowed any claim to it, then it was the privilege of the garnishee to secure an order on Walker to appear and show cause why the money should not be applied to the satisfaction of plaintiff’s execution, and in the absence of such an application the verdict should be for plaintiff. The court refused to give the instruction, and this ruling of the court presented the only question for review. The supreme court held that the instruction ought to have been given. The reasons assigned are entirely satisfactory. In the discussion, however,
The Eyerman case originated in this court (13 Mo. App. 289), -and its opinion was in all things affirmed by the supreme court. 84 Mo. 408, supra. This court- held "that money deposited-in bank by a county treasurer raises no presumption that it belongs to the county; that the words “county treasurer” added to the depositor’s name on his checks or pass book is not notice to any one that the depositor holds the funds as such treasurer, but on the contrary “the presumption as between the parties, is in favor of the personal ownership of the funds by the depositor, and if nothing more appears the bank must be guided in all its transactions by these presumptions.” In conclusion the court said: “We think that.while the descriptio personae was insufficient of itself to impart notice that the dividend draft represented a deposit of money belonging to the city and county, yet all the other facts, when considered in connection with it, made at least a showing proper to go to the jury, for their determination of the question, whether such motive reached the defendant, through its officers, at or before the cashing of the draft. The instruction given was therefore erroneous.”
Under the foregong view of the law Lindsay made a prima facie ease by showing that the money was on deposit in the defendant bank in the name of Brooks, “agent.” Presumptively the money belonged • to Brooks, and to escape liability under the garnishment it devolved on the bank to
The finding of the referee that that portion of the fund which was claimed by the bank to belong to Brooks’ wife was in fact the property of Brooks, is justified by the evidence. The statement of Brooks was that this money was the proceeds of a draft sent to him by his sister who lived in Virginia;
Under the views of my associates the judgment of the circuit court must in all things be affirmed. The costs will be taxed equally.
SEPARATE OPINION.
I agree that the judgment should be affirmed, but I am unable to agree to the discussion in the opinion of Judge Biggs. I think the conclusion reached by the referee that the information given by Brooks, that his account was an agency one, and the fact that the account was kept by the bank as an agency account, was notice to the bank that the deposit was a trust fund and not the individual money of Brooks; nor do I think the ruling in Gregg v. Bank, is in the least shaken by the ruling in the case of Eyerman v. Bank, 84 Mo. 408. In its discussion of the case by the court of appeals (18 Mo. App.loc.cit. 291), the court went out of the record to remark, that the fact that Herman Rechtien, county treasurer, deposited money in the bank to the credit of “Herman Rechtien, county treasurer,” was not notice to the bank that the money so deposited was county funds. This question was not in the ease; but the question was whether the addition of the words “county treasurer” written im,a draft after the name of the payee, was notice to a bank to whom the draft was presented for discount by the payee, that the draft was a trust fund. It was correctly ruled that it was