Scott, Kerr & Co. v. Smith

By the Court, Kingman, J. The defendant in error filed his petition in the District Court against the plaintiff in error, averring that he had made deposits with them as bankers, between the 19th of June 1858, and' the 23d of April 1859, of various sums, amounting in the aggregate to $12,792, with the agreement that he, Smith, was to have the privilege of drawing on [444] them at any time to the full amount deposited, with the right at' any time to demand a settlement and withdraw whatever balance' was due him. That he had so drawn all the- amount except $1,228.12, which was still due him; also avering demand and refusal to pay the same. The answer admits all the allegations of the petition except the amount deposited, and the balance due. It admits that there was an undrawn balance of $135.66, and. that on the 30th day of May 1859, che sheriff of Leavenworth County levied on said sum of money as the property of the plaintiff by virtue of an execution in which Lyman Scott was- plaintiff, and at the same time the sheriff took the money into possession. In May 1862, a trial in the case at bar was had, and Smith recovered a verdict of $160. During the progress of the trial the defendants having read a judgment with execution thereon in favor of Lyman Scott and against the piaintiff, Smith, and Harvey. Defendants also offered to read in evidence the sheriffs return, as follows: “ By virtue of the within writ of execution, I did on the 30th day of May 1859, levy on one hundred and thirty-five dollars and sixty-five cents in money; also a lot of merchandise as per inventory attached. Satisfied in full.” The Court sustained an objection to the reading of the sheriff’s return. Defendants then offered to prove that the money mentioned in said return was the money owing from said plaintiff, and that defendants paid the same to the sheriff', he then holding the said execution which was in full force and unsatisfied, and that the sum so paid was applied in part liquidation of the judgment of Scott w. Smith, which the Court would not allow. Defendants then moved the Court for leave to so amend their answer as to show the above facts which the Court refused. To these several rulings the defendants excepted, and seek to reverse the. judgment in this Court. [445] We do not feel justified in disturbing tlie judgment of the Court below. The answer of defendants shows the account between the parties; plainly showing in an hundred entries that the deposits were general, and leaving with Smith no right to any specific pieces of money; only a right to a specific amount. This also appears from the petition and is not controverted. Therefore there was no specific money in the hands of the defendants of which Smith was the owner and on which a levy could be made. {See Turner v. Fendall, 1 Cranch, 45). This being so, the Court under the pleadings did right in not allowing the sheriff’s return to be read. The proof subsequently offered, is open to the same objection. The defendants did not-bring themselves within the provisions of Sec. 475 of the Code, even if the amendment allowing such proof had been permitted. The amendment changed substantially and materially the defense, and therefore was properly rejected under Sec. 147 of the Code. The judgment of the Court below is affirmed. All the justices concurring.