Wichita National Bank v. Maltby

The opinion of the court was delivered by JOHNSTON, J.: The manifest purpose of this action was to recover money which had been deposited in the bank by Charles Warren in his lifetime, which Maltby alleged belonged to the estate, and to the possession of which he was entitled by virtue of his appointment as administrator. A certificate had been issued when the money was deposited, which had been taken up by the bank when it was paid to the widow and children of the deceased; but evidently the pleader did not base his action on that instrument, as no description of the certificate was pleaded. It was not averred whether the certificate was payable to order or to bearer; whether it was to be paid at a time certain, or upon demand and return of the certificate; nor was it alleged whether it was due and demandable at the time the action was brought. In some cases certificates are so drawn as to constitute nothing more than an acknowledgment of the receipt of the money, while in others the terms are such as to make it the equivalent of a promissory note. It is impossible to determine from the petition what its form and characteristics were, or whether it is entitled to be regarded as a negotiable instrument. It is alleged and admitted that a deposit was made, [570] and the petition avers that the money deposited belonged to Charles Warren, and that he was the owner and holder of the certificate of deposit at the time of his death. It is alleged that the certificate was left for safe-keeping with the. proprietor of a hotel, and by him turned over to the widow and children of the deceased, without indorsement, upon which the money was drawn without right. The general denial in the answer raises an issue, at least upon the ownership of the deposit and of the certificate. It denies that Warren was the owner and holder at the time of his death; that the certificate was left for safe-keeping with the hotel proprietor, and was wrongfully turned over to the widow of the deceased. It alleges that the money did not belong to the deceased, and further, that the widow and children were the sole and only persons who owned the money and had the right to draw the same from the bank. There is a further allegation, that the money was drawn by their agent, who was duly authorized and empowered to draw such money. Leaving out of sight the defects of the petition, it is clear that the answer stated a defense which precluded the entry of judgment upon the pleadings. If the certificate is to treated as a mere receipt for money, and the action brought to recover the deposit, there can be no doubt that, to say nothing of the denial of demand, an issue was presented as to the ownership of the money and the right of the widow and children to draw the same. Assuming, however, that the action was upon the certificate, we still think an issue was tendered by the answer upon which the defendant was entitled to a trial. If the certificate was in the ordinary form and possessed the characteristics of a negotiable instrument, it may have been transferred by Warren by delivery or indorsement. It was not in the possession of the administrator, and the answer in effect denied that it unlawfully and wrongfully came into the possession of the defendant, or that it was turned over to the widow of the deceased without indorsement. It denied that Warren was the. owner of the deposit at the time of his death, and also that he owned or held the certificate of [571] deposit. Presumably, a party who makes a deposit is the owner of the same, but this presumption may be overcome by proof, and if Warren was the owner, and the certificate issued to him a negotiable instrument, it was still subject to be transferred, and a good title passed by delivery without in-dorsement. (Williams v. Norton, 3 Kas. 295; McCrum v. Corby, 11 id. 464; Washington v. Hobart, 17 id. 275; Weeks v. Medler, 20 id. 57.) In Hutchison v. Myers, 52 Kas. 290, it was held that an unverified general denial to a petition upon a promissory note put in issue the averments that the plaintiff was the owner and holder of the note, which prevented a judgment upon the pleadings without testimony. This denial of itself was sufficient to require proof; but, in addition, the answer contained specific averments of the ownership and authority of those who di’ew the money, and further, that the money itself was exempt from appropriation to the payment of any of the debts of the deceased. The defendant was entitled to a trial upon the issues presented, and the judgment must be reversed, and the cause remanded for that purpose. All the Justices concurring.