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one left unlocked excused the negli- knowledge or suspicion of the same gence of the bank in not locking the on the part of the president or direcother door of the vault, so as to re- tors of the bank, and without their believe it from liability.

coming acquainted with the bank's In Marietta Trust & Bkg. Co. v. real financial condition, would leave Faw (1924) — Ga. App. 121 S. E. it a question for determination by the 244, where a customer of a bank de- jury as to whether or not the direcposited a Liberty bond for safe keep- tors had exercised due care in retaining under circumstances such as to ing such a person in the office of vice make the deposit a special one and the president and in charge of the bank's bank a gratuitous bailee, and the bond business and assets. Civil Code 1910, was converted by the vice president to 88 3470, 4530, 5735. A director of cover a defalcation, it was held that bank has duties to perform more eswhile slight diligence in the protec- sential than that of allowing his name tion and preservation of a special de- to be printed on the bank's stationery; posit in the degree of care imposed by and negligent ignorance is sometimes law upon a gratuitous

a gratuitous bailee, yet equivalent to knowledge. Penal Code where, as in this case, such bailee is 1910, $ 204." And it was further held a bank, already reduced to financial that the bank could not be heard to stringency by the defalcations of its plead, under the facts of the case, that vice president, who, at the time the its vice president exceeded his authorspecial deposit was made, had long ity in receiving the special deposit for been and still was in charge of the the bank, even if it conclusively apbank's business and assets, and who peared that he did so exceed his auhad, for years before such special de- thority, since the bank must either reposit was made, successfully concealed pudiate or ratify the transaction as from the president and directors all a whole, and its retention by it of knowledge of his fraud and of the the net proceeds amounted to a ratifibank's real condition, by substituting cation of the transaction as a whole. forgeries for the money stolen by him In Kansas it has been held that the from the bank, and who, after receiv- "Bank Depositors' Guaranty Fund ing such special deposit for the bank, Law” does not protect special deposits stole it, converted it into cash, and in the nature of bailments, and conplaced that cash in the bank, substi- sequently that one who had deposited tuting it for one or more of his prior Liberty bonds with a bank for safeforgeries, the bank cannot, while re- keeping could not, upon the convertaining the proceeds of such conver- sion thereof by the bank, proceed sion of the special deposit, escape lia

against the guaranty fund, even bility to the depositor on the theory though the bank officials had attemptthat all the wrongful acts shown were ed to protect the depositor by executthe unauthorized individual acts of ing a contract to the effect that the the vice president and that the bank bonds were to be regarded as a general itself had exercised due care in the deposit of cash. Bloomheart v. Foster preservation of the special deposit for (1923) 114 Kan. 786, 221 Pac. 279. the benefit of the depositor, although, And in Spry v. Hirning (1923) – if the bank had received no benefit or S. D. —, 191 N. W. 833, where Liberty profit from the transaction, the result bonds were deposited in the deposimight be different. In the latter con- tor's bank for the purpose of being nection the court in its syllabus said: transmitted to another bank selected "Even if the bank had received no by the depository bank for safe-keepbenefit from the transaction, still the ing, but instead were converted to its length of time the vice president's de- own use, upon its failure and an atfalcations had existed,-'seven tempt by the depositor to obtain a eight years, possibly longer,' accord- preference from the bank guaranty ing to his own testimony-without fund, under the Depositors' Guaranty

31 A.L.R.–45.

or

Act, on the theory that there had been War saving stamps. a special deposit and not merely a In the reported case (MILLER V. bailment, it was held that since the BANK OF HOLLY SPRINGS, ante, 698) certificate of deposit did not require the court passed upon the question of the return of the identical bonds de- the liability of a bank for the loss of posited, but provided merely for their United States war saving stamps return, “or the equivalent,” the trans- which had been deposited with it for action amounted to nothing more than safe-keeping. In this case, in holding a bailment, which was not protected the bank liable for the stolen stamps, by the guaranty fund.

the court regarded the bank as a And in Tyler County State Bank v. holder under a special contract of Rhodes (1923)

Tex. Civ. App. 5, bailment based upon a "sufficient con256 S. W. 947, it was held that a sideration," which contract was viospecial deposit of Liberty bonds in a lated by its having kept the stamps bank for safe-keeping did not come in the vault, which was burglarized, within the class of deposits protected while its safe, where it kept its own by the guaranty fund under the Texas

money, was not. Bank Deposit Guaranty Law.

And in West v. First State Bank And in Tyler County State Bank

(1924) Minn. —, 197 N. W. 850, it v. Johnson (1924) - Tex. Civ. App. was held that one who had deposited -, 257 S. W. 932, it was held that one war saving stamps with a bank for who deposited Liberty bonds with a safe-keeping as a gratuitous bailee bank for safe-keeping, to be returned established a prima facie case by on demand, was not a “depositor"

showing the bailment and the bank's within the meaning of the Texas Bank

failure to return the stamps, and that Deposit Guaranty Law, since, as no the court would not set aside a vertitle passed to the bank, the relation

dict in plaintiff's favor where the debecame that of bailor and bailee, and

fense was loss by burglary, but the detherefore that the bank's conversion

fendant's evidence was so contradictof the bonds on its insolvency did not entitle the depositor to proceed against

ory and inconclusive as to leave clear the guaranty fund. And this even

room for an honest difference of opin

ion. though the conversion was on the ad

The court added, however, that vice of the commissioner of insur

if the evidence had led irresistibly to ance and banking, such fact not be

the conclusion that the stamps had ing sufficient to make the owner a “de- been taken by the burglars, the bank positor,” since the commissioner was

would have been exonerated. without authority so to advise the

And Harland v. Pe Ell State Bank bank. The court also held that the (1922) 122 Wash. 289, 210 Pac. 681, depositor of the bonds was not enti- which is set out under the heading tled to offset the assessment made “Liberty bonds," supra, also involved against her on her stock in the bank the question of the liability of a bank against the liability or obligation to for the loss of war saving stamps held her on the part of the bank for the by it for safe-keeping. See the case conversion by it of her Liberty bonds. as therein treated.

G. J. C.

(154 Minn, 252, 191 N. W. 589.)

C. R. VERRY

V.
GEORGE B. BARNES.

LEWIS E. JONES et al., Claimants.

F. R. BARNES, Appt.,

V.
C.'R. VERRY, Respt.

VIOLETTE M. VERRY, Admrx., etc., of Thomas R. Verry, Respt.,

V.
JAMES FITZGERALD, Sheriff, Appt.
Minnesota Supreme Court - January 12, 1923.

(154 Minn. 252, 191 N. W. 589.) Attachment — of property in possession of sheriff.

1. When the sheriff has levied on the property of a judgment debtor and advertised it for sale, the debtor may not interrupt the execution of the process of the court by attaching the judgment.

[See note on this question beginning on page 711.] Attorney and client - priority of lien tends to judgments of different courts for services.

and to those rendered in separate ju2. An attorney's lien on a judgment risdictions. he has secured for his client is su- [See 15 R. C. L. 823.] perior to the claim of a creditor of the

Assignment - of judgment — sufficlient who levies on the judgment be- ciency. fore the giving of notice of the claim 4. As between the parties to a judgfor the lien. The rule holds good, al- ment, an assignment thereof is good, though the lien was asserted by two

although not filed. attorneys, one of whom was not a resi

Pleading order to make more defident of this state and not licensed to

nite — failure to comply. practise in its courts.

5. Failure to comply with an order [See 2 R. C. L. 1075.]

to make a pleading more definite and Set-off right to purchase judgment

certain is of no consequence, if the for.

issue tendered by the portion of the 3. A judgment debtor may purchase pleading covered by the order is not a judgment to use as a set-off. If he litigated. wishes to avail himself of the right to Evidence weight uncontradicted have it treated as payment pro tanto, testimony. he should apply to the court to have 6. Uncontradicted testimony does one judgment set off against the other, not compel a finding in accordance and not levy on the judgment against therewith. himself. The doctrine of set-off ex- [See 26 R. C. L. 1087.]

Headnotes by LEES, C.

APPEAL by F. R. Barnes from a judgment of the District Court for Wilkin County (Flaherty, J.) allowing a lien in favor of plaintiff's attorneys in an action on a contract relative to the exchange of certain lands, in which the attorney filed a claim for a lien upon the judgment which appellant claimed to have attached to secure a debt owing himself, Affirmed.

APPEAL by plaintiff F. R. Barnes from a judgment of the District Court for Wilkin County (Flaherty, J.) in favor of defendant in an action brought to recover an amount alleged to be due on a judgment against defendant, which had been assigned to plaintiff by a bank. Affirmed.

APPEAL by defendant sheriff from a judgment of the District Court for Wilkin County (Flaherty, J.) in favor of plaintiff, subject to an attorneys' lien, in an action brought to recover money collected by defendant on an execution. Affirmed.

The facts are stated in the Commissioner's opinion.

Messrs. George D. Smith and Wolfe was issued and a levy made on land & Schneller for appellants.

in that county. The land was adMessrs. Lewis E. Jones and W. S. vertised for sale on February 21, Lauder, for respondents:

1920. On that day Barnes's attorA sheriff is an officer of the court.

ney paid to the sheriff $2,718.65, the In seizing property he acts pursuant to the writ of the court for the benefit of

amount required to satisfy the exethe person procuring the writ; to that cution. In 1917, a North Dakota extent he is the agent of the first at

bank obtained a judgment against taching creditor, and as such agent Verry for $6,099.88. On February cannot do an act against the interest 18, 1920, $3,550 was due on the of his principal.

judgment. On that day the bank Camp v. Williams Bros. 119 Ga. 152,

assigned the judgment to F. R. 46 S. E. 66; Headrick v. Brattain, 83

Barnes, who is a brother of George Ind. 188; Winton v. State, 4 Ind. 321;

B. Barnes. F. R. Barnes immediSibert v. Humphries, 4 Ind. 481; Ross v. Clarke, 1 Dall. (Pa.) 354; Shinn v.

ately commenced an action against Zimmerman, 23 N. J. L. 150, 55 Am.

Verry in the district court of WilDec. 260; Dawson v. Holcomb, 1 Ohio, kin county to recover the amount due 275, 13 Am. Dec. 618; Keating v. Spink, on the judgment and caused a writ 3 Ohio St. 124, 62 Am. Dec. 214; Jones of attachment to be issued and dev. Jones, 1 Bland, Ch. 443, 18 Am. Dec.

livered to the sheriff, and on Febru327.

ary 20 the sheriff levied on Verry's The lien of the attorney is unassail

judgment against George B. Barnes able and must be sustained. Gill v. Truelsen, 39 Minn. 373, 40 N.

and on the land about to be sold to W. 254; Lindholm v. Itasca Lumber Co. satisfy it. On the following day the Minn. 46, 65 N. W. 931; Northrup v.

sheriff made return on the execuHayward, 102 Minn. 307, 113 N. W. tion, certifying that he had collect701, 12 Ann. Cas. 341; Henry v. Tray- ed $2,718.65 thereon, deducted his nor, 42 Minn. 234, 44 N. W. 11; Davis

fees and expenses, and held the rev. Great Northern R. Co. 128 Minn. mainder of the money by virtue of 354, 151 N. W. 128; Coleman v. Austin, the attachment levied on the judg99 Ga. 629, 27 S. E. 763; People use of

ment. On February 18, 1920, C. Simon v. Pack, 115 Mich. 669, 74 N. W. 185; Fenno v. English, 22 Ark. 170;

R. Verry assigned his judgment Rust v. Larue, 4 Litt. (Ky.) 412, 14

against George B. Barnes to T. R. Am. Dec. 172; Eggleston v. Boardman, Verry. The assignment was not 37 Mich. 14; Allcorn v. Butler, 9 Tex. filed in the office of the clerk of the 56.

district court until February 23, Lees, C., filed the following opin- 1920. At the time of the assignion:

ment, Verry was actually indebted Three judgments of the district to the assignee in a sum exceeding court of Wilkin county are involved $3,000. On February 20, 1920, Lewin these appeals, which were heard is E. Jones and W. S. Lauder, as and submitted at the same time. attorneys for C. R. Verry, filed in

On December 27, 1919, a judg- the office of the clerk of the district ment was entered in the district court a claim for a lien of $1,010.65 court of Wilkin county in favor of upon their client's judgment against C. R. Verry and against George B. Barnes. On February 26, 1920, T. Barnes for $2,623.80. An execution R. Verry made a demand on the

services.

(154 Min. 252, 191 N. W. 589.) sheriff for the money he had re- giving Verry's attorneys judgment ceived on the execution against for the amount of their lien. An Barnes. The demand was refused attorney's lien on a judgment he has on the ground that F. R. Barnes had secured for his cli

ent is superior to client-priority

Attorney and attached the money. Thereupon T. R. Verry brought an action against the claim of an exe- of len for the sheriff to recover the money. cution or attaching He died while the action was pend- creditor of the client, who levies on ing and Violette M. Verry, as ad- the judgment before notice of the ministratrix of his estate, was sub- claim for the lien has been given. stituted as plaintiff. Messrs. Jones It has long been settled that a party and Lauder intervened in the action to a cause may not run away with in which C. R. Verry had obtained the fruits of his attorney's industry judgment against Barnes and and ability without satisfying the claimed so much of the money in the attorney's just demands. The attorsheriff's hands as was required to ney has a lien on the cause of action satisfy their lien. There was a trial from the time of the service of the by the court without a jury of the summons. It continues until it is several issues thus arising.

satisfied or released. It is not necIn F. R. Barnes v. C. R. Verry, essary that notice of the lien be givthe court found that the North Da- en to the opposite party or his atkota judgment had been assigned to torneys. They. are required to take plaintiff on February 18, and that notice of it. Henry v. Traynor, 42 on the same day Verry assigned his Minn. 234, 44 N. W. 11; Lindholm judgment against George B. Barnes v. Itasca Lumber Co. 64 Minn. 46, to T. R. Verry; that, to induce F. R. 65 N. W. 931; Desaman v. Butler Barnes to purchase the North Da- Bros. 114 Minn. 362, 131 N. W. 463; kota judgment, George B. Barnes Kubu v. Kabes, 142 Minn, 433, 172 gave him his note for $1,250, which N. W. 496. was the amount paid for the assign- It is sought to avoid the appliment of the judgment; that in truth cation of these principles on the George B. Barnes was the purchas- ground that Judge Lauder is a noner of the judgment, and the assign- resident attorney, not licensed to ment to his brother was a mere de- practise in this state. We deem that vice to defeat the collection of the fact unimportant. A nonresident Minnesota judgment in the case of attorney may try or assist in the Verry v. Barnes; that the note had trial or conduct of an action or probeen paid before the trial, and that ceeding pending in a court of this at the time of the trial George B. state. Gen. Stat. 1913, § 4947. By Barnes was the real owner of the usage and comity, the privilege of North Dakota judgment.

practising in all the courts of a state In C. R. Verry v. George B. is extended to regularly licensed atBarnes the court found that the at- torneys of sister states. 6 C. J. 573. torneys had a lien upon the judg- But they have no authority to comment for the amount they claimed. mence actions in the courts of this

In Violette M. Verry v. James state (Francis v. Knerr, 149 Minn. Fitzgerald, as sheriff, the court 122, 182 N. W. 988), and hence the found that plaintiff was entitled to prevailing practice is to associate a judgment for the money in the sher- resident attorney as the attorney of. iff's hands remaining after the lien record. When this is done, as it of the attorneys had been satisfied. was here, there is no reason for de

These appeals are from the sever- nying a lien for the compensation al judgments entered on the findings the client should pay. and were taken after motions for 2. Did F. R. Barnes acquire new trials had been made and de- rights by virtue of the attachment nied.

which were superior to those of the 1. The court was clearly right in Verrys? The findings with respect

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