164 P. 494 | Utah | 1917
The plaintiff in his complaint in substance alleged that on the 26th day of December, 1913, one J. A. Brown was the owner of a certain sum of money, to wit, $380/ which was placed on deposit with the defendant bank in the name of one J. N. Porter for the use and benefit of said Brown; that thereafter, on the 14th day of August, 1914, said Porter, in writing, duly assigned to the plaintiff all of his right, etc., to said $380 deposited as aforesaid, and that said J. A. Brown, on the 17th day of the same month, also in writing, duly assigned all of his right, etc., to said money to the plaintiff; that plaintiff duly notified said bank of said assignments and demanded payment of said money; and that said bank refused to pay the same. Plaintiff also alleges on information and belief that the defendant Cole makes some claim to said money, but that such claim is without right. Plaintiff prays judgment for the amount aforesaid, with interest.
The bank filed an answer in which, while not claiming any right to the money, yet it set forth that the money was deposited in the bank, and that it had a right to retain the same for a certain stated purpose, and that the defendant Cole claimed some right to or interest in said money on account of certain unsettled or unliquidated claims which arose out of. some transactions theretofore had between said Cole and said Brown, plaintiffs assignee. The bank prayed that
The defendant Cole filed an answer, and, excepting the disclaimer of interest and the tender of the money in court, he practically adopted the averments contained in the banks answer, and alleged that the money was left on deposit in the bank to await a settlement between him and said Brown, the owner thereof.
A trial to the court resulted in findings in which the court in substance found that the money in question was deposited in the bank to await the settlement of some unliquidated accounts which said Cole claimed existed between him and said Brown; and the court further found that “the defendant S. N. Cole has not established his claim to the said $380 or any part thereof.” .Upon the findings of fact the court made its conclusion of law in which it found:
“That neither plaintiff or defendants in this action are at the present time entitled to the said sum of $380, and that the said sum shall be deposited by the clerk of this court, in whose hands áhid money is now held, in some disinterested bank in Box Elder County, Utah, said sum to be deposited on interest, and to be held until an administrator may be appointed for the estate of said J. A. Brown, notice to creditors published, and the claim of the said S. N. Cole to such, money be adjudicated, or until such time as the said S. N. Cole may otherwise establish his claim, or by the law be estopped from asserting the same.”
Judgment was entered in conformity with the foregoing conclusion, from which both the plaintiff and the two defendants appeal.
The defendants’ appeal 'was taken first, and it is predicated upon the judgment roll alone, and we will dispose of that first. The only assignments, although stated in different ways, are that the court erred in adjudging “that none of the parties to the action are entitled to the money sued for,” that said bank had disclaimed all interest in said money and had tendered the same in court, and in requiring said money to be deposited as provided in the conclusion of law which, we have copied in full.
“The rule being that upon a joint assignment of errors one of several appellants or plaintiffs in error cannot avail himself of errors which are not common to all, but which affect or injure him alone, that parties cannot jointly assign error or take advantage, on a joint assignment, of errors which affect them severally, and not jointly, and that a joint assignment of error must he good as to all who join therein, or i.t will not he available to any of them, and if it is not good as to one, it will be overruled or disregarded as to all.”
In discussing the question of joint assignment of-errors Mr. Elliott, in his work on Appellate Procedure (section 318), says:
“Where several parties unite in one assignment of errors, they will encounter defeat unless the assignment is good as to all. If the errors affect the parties severally and not jointly, the proper practice is for each party to assign errors, for the rule is well settled that a joint assignment will not permit one of several parties to avail himself of errors alleged on rulings which affect him alone, and not those with whom he unites in the assignment. The rule that a joint assignment of errors must he good as to all who unite in it is in harmony with the general principle of pleading which requires a demurrer, an answer, or a motion to he good as to all who join in it.”
While there are some exceptions to the rule stated above, yet none of the exceptions apply here.
This disposes of the defendants’ appeal.
Proceeding now to the merits of plaintiff’s appeal, we find on going into the record that we cannot concur in the conclusion of law and judgment entered by the district court. It appears from the record that in 1913 J. A. Brown aforesaid sold some property to a Mr. Christensen; that Mr. Brown directed Mr. Christensen to deposit the purchase price, amounting to $1,600, to Brown’s credit in the defendant bank; that Christensen did as directed by Brown; that at that time Mr. Brown was quite ill, and he and his wife soon thereafter went to Arizona in hopes of improving his health; that on leaving Utah Mr. Brown left some of his business affairs in charge of the I. N. Porter hereinafter referred to; that said Porter attended to the matters left in his charge, and after adjusting those matters there was a balance remaining in the bank of $380 (the money in question) which was deposited in the name of Porter as Brown’s money. Mr. Brown returned-from Arizona in the summer of 1914, but his health had not only not improved, but had in fact grown worse, and he was very feeble. In August, 1914, Mr. Brown, in writing, assigned said $380, which is the money in question, to the plaintiff, and, in view that it was deposited in the name of Porter, the latter, also in writing, assigned the same to the plaintiff. These assignments were produced in evidence and are made a part of the record. Plaintiff notified the bank of the assignments and demanded payment of the money, but the bank refused to pay the same for the reason that Cole claimed some interest therein, as before stated. Some time after making the assignment Mr. Brown died and the plaintiff thereafter brought this action to recover the money from the bank and made Cole a party defendant in the action. Cole claimed, and- so testified at the trial, that Porter, as Brown’s agent, had agreed that said $380 should be deposited in the defendant bank and should be held there until his unsettled
While it is true that both Mr. Cole and the cashier of the bank testified that Porter had deposited Brown’s money as a special deposit, yet, for the reasons hereinafter stated, the evidence is wholly insufficient, to justify a finding that Porter had any authority to do that or that Cole by anything that Porter said had acquired any special claim or lien on Brown’s money.
For the reasons stated the judgment is reversed, and the cause is remanded to the district court of Box Elder County, with directions to grant plaintiff a new trial and to proceed with the case in accordance with the views herein expressed; defendants to pay the costs on their appeal, and also to pay the costs on plaintiffs ’ appeal.