61 Neb. 709 | Neb. | 1901
The plaintiff’s right of action is based on an alleged deposit of $5,000 made by one George W. Harmon in the defendant bank, plaintiff in error in this court. On a
It is contended that the order substituting and permitting the defendant in error to prosecute the action in her own name, as was done, was erroneous, and that she is without legal capacity to sue; that the administrator alone can prosecute the action, involving, as it does, a claim due the estate of which he is the duly constituted and legal representative, and we are cited to the case of Cox v. Yeazel, 49 Nebr., 343 in support of the contention. In the first and second paragraphs of the syllabus in that case it is held: “Generally, an action to recover a debt payable to a deceased intestate must be brought by the administrator of the estate.” “Such an action cannot be maintained by the heirs at law, unless there be no demands against their decedent ancestor, and there has .been no administration, or the administration has been closed.” Says No uval, J., in the opinion, page 349: “Counsel for plaintiffs below concede the general rule to be that the heirs cannot sue for assets belonging to
It- is asserted by plaintiffs in error that the cause of action as to the substituted plaintiff in the court below is barred by the statute of limitations. This is upon the theory that the act of substitution was equivalent to the commencement of a new action. We are unable to agree with counsel in this view of the case, and must hold that the action Avas but the continuation of the prior proceedings, and that during its pendency the statute did not run. There is no change of the cause of action pleaded in the original petition or abandonment thereof; nor is there a change of parties, except that the real party in interest Avas substituted for the administrator. The supplemental petition presents no amendment to the cause of action originally pleaded, but only matters occurring after the commencement of the action, and more particularly with reference to the action taken regarding the settlement, and which led to the substitution
In the answer to the original and supplemental petition the defendant, as a first, second and third defense pleaded in substance that the action was barred by the statute of limitations; that the plaintiff had no right or legal capacity to sue and prosecute the action, and that the settlement heretofore referred to was a bar to a right of recovery by the substituted plaintiff. In the instructions the court told the jury that regarding these first three defenses they had nothing to do, but should determine only the issues as. raised by the fourth defense. This was the original defense interposed, and substantially as pleaded in the answer filed after the first trial, and which was construed as a plea of payment in the opinion rendered in this court heretofore referred to. Objeetion is made to this instruction, because it took away from the jury the right to find as a question of fact any of the matters presented in the first three defenses. These questions, except that of the statute of limitations, were disposed of by the rulings of the court made during the pendency of the trial, and were not thereafter
To avoid its liability by reason of the deposit made by the plaintiff, the defendant bank sought to prove that the funds so deposited were paid to the firm or bank of Russell & Holmes by the authority of the deceased, under an agreement made by him with Holmes at the time of leaving with the bank the check drawn by deceased in its favor and against the Carson National Bank of Auburn, the proceeds of which check were received by and deposited in defendant bank. The testimony of Holmes, taken in the form of depositions, was offered in support of plaintiff’s theory in this. regard. Complaint is made because of the exclusion of that portion of the testimony which related to the original transaction claimed by defendant to have been had by and between the deceased and the witness Holmes when the deposit was made. The evidence was excluded on the ground that Holmes had a direct legal interest in the result of the action, and was therefore disqualified from testifying regarding such transaction under the provisions of section 329 of the Code of Civil Procedure. It is argued that the ruling of the trial court in excluding the evidence was correct for two reasons: first, because Holmes
It is disclosed by the record that at the time of the transactions in relation to the deposit and.the payment of the proceeds to the firm or bank of Russell & Holmes, Holmes was an officer and stockholder in the defendant bank. This was about March 6, 1891. In October, 1892, and prior to any litigation regarding the deposit, and long prior to the death of Harmon, the original plaintiff, Holmes severed his connection with the defendant bank, transferred all his interest therein, since which time he appears to have been in no wise connected with or interested in its affairs. An action was begun by the plaintiff in his lifetime on the alleged deposit, November 26, 1892, and after trial and judgment in the case, which upon error was reversed and the case remanded, the plaintiff in the action, in September, 1896, died. It is under these facts that we are called upon to decide whether, upon a second trial by the representatives of the deceased plaintiff, the testimony of the witness Holmes is rendered incompetent by reason of the provisions of the section referred to. Had the transfer of interest been made subsequent to the death of the original plaintiff, we think the effect of the operation of the statute would be to disqualify the witness under the rule announced in Magenau v. Bell, 13 Nebr., 247, where it is held that a transferrer of a claim against an estate can not, by reason of the transfer, qualify himself to testify regarding a transaction as to which he would be incompetent to testify because of the section referred to were it not for such transfer. It is by this rule held.to be against the policy of the law to permit the statute to be evaded and its purposes thwarted by a transfer of interest in a matter which may be a subject of litigation. He is, notwithstanding the transfer,
We are next to inquire whether, by reason of the witness’s connection with the bank of Russell & Holmes, of which he was a member, and to whom it is alleged the deposit was paid on the authority of Harmon, he was disqualified from testifying to the transaction between him and the deceased inquired about. Under the issues, the bank of Russell & Holmes, and not defendant bank, was alleged to be the debtor of Harmon for the funds deposited by him in the defendant bank. This Harmon and his representatives after him denied, claiming defendant bank as his debtor, and denying any transaction with the firm of Russell & Holmes. If the judgment pronounced in the pending action will be legal evidence for or against the witness in another action, then he has a direct legal interest in the result of the suit, rendering his testimony- incompetent, under the provisions of the statute quoted. 1 Greenleaf, Evidence, sec. 390. Sorensen v. Sorensen, supra; Eisenlord v. Clum, 27 N. E. Rep. [N. Y.], 1024.
It is to be noted that the judgment in the present case would not be binding on the witness or the firm of which he was a member, as to its liability for the money alleged to have been loaned and paid to the firm as the funds deposited by Harmon. The judgment, however, is evidence that, in the present proceedings, the bank has been adjudicated to be the debtor of Harmon for the money deposited, and liable to him or his representatives therefor, and that Harmon and his representatives, having
In an action against the firm of Russell & Holmes on their liability for the money paid them, or for their use in canceling certificates of deposit held by defendant bank, claimed to have been the amount deposited by Harmon, the judgment in the present case would be competent evidence for the purpose of proving its rendition in favor of Harmon’s representative, and its satisfaction by the bank. 2 Greenleaf, Evidence, sec. 116; 1 Green-
The defendant also offered to prove by two other .officers and stockholders of the bank, one the president and the other the cashier, that they heard a conversation between Holmes, then president, and the deceased, in which Holmes stated to the deceased that he, the deceased,
It is further claimed that the evidence should have been admitted, because during the trial certain of the
Complaint is made because tbe court instructed tbe jury that “unless you find further that tbe defendant has proved by a fair preponderance of tbe evidence that defendant has paid to George W. Harmon or tbe bank of Russell & Holmes on tbe authority of George W. Harmon tbe sum of fS.OOO and interest, if you find that interest was to be paid by defendant bank, you must find for tbe plaintiff.” We find nothing worthy of severe criticism in this instruction. In substance, it required tbe defendant to prove, by a fair preponderance of tbe evidence, the defense pleaded in its answer. This, under tbe issues, was erGrtly proper.
Some complaint is made because of the wording of some of the instructions, it being claimed.that they evidence a feeling upon the part of the trial court favorable to plaintiff and prejudicial to the defendant. It is very difficult to draw an instruction that is entirely satisfactory to both parties to the case, and we think in this instance no more reason exists for objection to the instruction than is ordinarily the case where the law is construed to be other than that contended for by counsel.
Some other objections are presented, not, however,
Finally, it is insisted that the evidence does not Support the verdict. From an examination of the record in the case, we think the evidence under the issues justifies the finding of the jury and supports the judgment in favor of the plaintiff. Briefly, it is disclosed that the deceased deposited with the defendant bank $5,000. Whether' the deposit of the check for $5,000, drawn in defendant’s favor against the Carson National Bank, is construed as for collection, or a deposit, we regard as immaterial under the evidence, which conclusively shows that the money on the check was received and credited to the defendant bank, and of the entire proceeds of which it had the benefit. This is practically admitted by the pleadings, and regarding which there is no conflict in the evidence. The defendant, however, contends, that at the request and on the authority of the deceased, it paid the money to the firm or bank of Russell & Holmes. Holmes was at the time the president of the defendant bank, as well as one of the parties concerned in the other institution to which the defendant bank was successor. On this phase of the controversy, the burden was on the defendant to establish its rightful disposition of the deposit as contended by it; and on this issue the case was fairly submitted to the jury, who found against its contention. We are of the opinion that the evidence, if anything, preponderates in favor of the finding of the jury. The circumstances clearly point to the defendant bank as being alone the party with whom the deceased dealt at the time of the making of the deposit,, and justifies the inference that with it alone the entire transaction related; that the firm of Russell & Holmes was regarded as a defunct institution after it was merged in the defendant bank, which became its successor, or that it existed only for the purpose of winding up its affairs.
The evidence justifies the verdict, ahd no prejudicial error being apparent on the record, the judgment should be, and is, therefore,
Aeeirmed.