38 N.W.2d 386 | Minn. | 1949
Lead Opinion
From the time when the original deposits were made until the commencement of this action, defendants had frequently discussed the matter of these deposits among themselves, and, upon inquiry, Rettinger had reported to individual beneficiaries of the trust that the money was still on deposit. In 1946, the cashier of the bank spoke to Rettinger about the deposits and informed him that he would have to post a bond to get either the money or new certificates of deposit. Rettinger did nothing in this regard prior to this suit by the state.
On June 11, 1947, the attorney general, in the name of the state, commenced this action under M.S.A.
"Any person who has left on deposit, or otherwise, with any banking institution or financial institution any funds or other property, and has not dealt therewith for a period of 20 years by adding thereto, withdrawing therefrom, or asserting any claim thereto, is presumed to have abandoned the same."
The trial court found that the funds had been abandoned, and it concluded that the funds had therefore escheated to the state and that the state was entitled to them. Defendants moved for amended *423 findings and conclusions or, in the alternative, for a new trial, and from the order denying that motion they appeal.
1. Section
"When any person abandons any funds or other property which have been left on deposit, or otherwise, with any banking institution or financial institution, the same shall, with the increase and proceeds thereof, escheat to and become the property of the state."
The above section operates only upon abandoned funds and transfers title therein to the state. Therefore, the only question for our decision here is whether or not there was an abandonment of these funds and, as a consequence, an escheat to the state. Defendants contend that, since they have appeared and defended the action by the state to have these funds declared escheated, it cannot be said that they have abandoned the funds, and that therefore the trial court's finding that "defendants, and each of them, have abandoned the funds" was not justified by the evidence.
In a general sense, abandonment is the voluntary relinquishment, surrender, or disclaimer of a known property right, absolutely and without reference to any particular person or purpose. It involves two elements — act and intention — and without the concurrence of these there can be no abandonment. There must be an actual relinquishment of possession accompanied by an intent to part permanently with property in the goods. Erickson v. Sinykin,
Findings of fact of a trial court are entitled to the same weight as the verdict of a jury and will not be reversed on appeal unless they are manifestly and palpably contrary to the evidence. This *424
rule applies whether the appeal is from a judgment or from an order granting or denying a new trial. Lipinski v. Lipinski,
Section
Section
"Any person claiming to be legally entitled to any of the funds or other property involved in any action commenced under the provisions of section
It cannot reasonably be contended that defendants, who answered the state's complaint and appeared in this action to contest the state's claim of abandonment, should, by the terms of §
2. Where the facts of a case are in dispute, this court will not make or amend findings of the trial court, or even remand a case with directions that the findings be amended in accordance with this court's decision. However, where possible within the limits of this court's appellate jurisdiction, the merits of a case will be determined, Droege v. Brockmeyer,
In the instant case there is no need for a new trial. The case is therefore reversed with directions to amend the findings and conclusions to show that there was no abandonment.
So ordered.
Addendum
Appeal from clerk's taxation of costs against the state and in favor of defendants. The basis of the objection is that the state was acting in its sovereign capacity and that no costs or disbursements should be taxed against the sovereign in the proceedings involved, and for the further reason that such taxation is not expressly authorized by statute.
The attorney general, in the name of the state, commenced the action under M.S.A.
The principal question involved here in connection with the taxation of costs is whether the state was acting in its sovereign capacity or whether it was involved in an ordinary action for the recovery of money or property.
In State v. Buckman,
The rule in the Buckman case as to taxation of costs and disbursements controlled in State v. Fullerton,
"* * * The present action is not, strictly speaking, one by the state in its governmental capacity, any more than was the Buckman case. Each proceeded upon the theory of an alleged property right; in the Buckman case, the right to damages for trespass upon state lands, and in this case, the right to money alleged to be the property of the state and to be wrongfully detained by the defendant. The governmental authority was not involved in either action. *427
Such authority is involved in penal actions, in those to enforce the payment of taxes, (State v. Northwestern Elev. Co.
In State ex rel. Smiley v. Holm,
"When the state acts in its sovereign capacity, costs and disbursements cannot be taxed against it. Respondent here acted for *428 the public. He represented the state. For all practical purposes he was the state. His error in judgment does not change the situation. It is only in exceptional cases that the state is liable for costs and disbursements. While acting in its sovereign character it is immune; but when it descends to the level of those with whom it associates and interests itself in property and proprietary rights as distinguished from governmental prerogatives, it subjects itself to the same liability for costs and disbursements as any litigant. The statute which allows costs and disbursements 'in every action,' G. S. 1923 (2 Mason, 1927) § 9473, is subject to this exception in favor of sovereignty."
It appears to us that the rule applied in the Buckman and Fullerton cases is applicable here. The state proceeded upon the theory of an alleged property right — the right to have the funds involved escheat to the state in the event that they had been abandoned. If the state had prevailed and no one had claimed the abandoned funds within the statutory time, the state rightfully would be entitled to the money. For that reason, it appears to us that this is not an action in the nature of a penalty, such as one to enforce the payment of taxes, but that it is an ordinary action for the recovery of money or property.
The clerk's taxation of costs and disbursements is affirmed. *429