Saunders v. Hibernia Savings & Loan Society

GIBSON, C. J.

The complaints in these eases contain substantially the same allegations as those in the Maguire case

(ante,

p. 719 [146 P.2d 673]), differing only in allegations respecting deraignment of title and amounts of deposits. The demurrers and the motions under section 1061 of the Code of Civil Procedure cover the same grounds as the demurrer and similar motion in the Maguire case. The decision in that case is therefore determinative of the main questions presented on these appeals.

A further problem is presented here, however, by the order of the trial court dismissing these actions upon the ground that the complaints were sham and based upon false allegations. The motions to dismiss for sham pleading attacked as false the allegations of the complaints respecting subsisting credit balances. The complaint in the Ordway action alleged that Patrick MeAran became a member of and depositor in the society on May 16, 1859, that he and his successors in interest continuously maintained a deposit with the society from May 16, 1859, to the present time, which deposit on February 18, 1880, and all times subsequent, amounted to $246.10, and that plaintiff succeeded to his rights. Upon the motion to dismiss, defendants introduced affidavits and depositions showing that Patrick MeAran’s account was closed on February 18, 1880, by the payment of the then balance of $246.10 to the sheriff under an execution issued pursuant to a judgment rendered against MeAran by the superior court, that no money had been on deposit to MeAran’s credit after that date, and that plaintiff had knowledge of those facts. The complaints in the Hayes and Saunders actions alleged that Julia Leary and John Barron became members and depositors on November 20, 1860, and May 18, 1861, that they and their successors in interest maintained deposits with the society at all times after November 20, 1860, and May 18, 1861, which deposits amounted to $36.91 and $18.35, respectively, on and at all

[740]

times subsequent to January 9, 1933, and that plaintiffs succeeded to their rights. The motions to dismiss directed to these actions were supported by affidavits, a judgment of the superior court, and record of satisfaction of the judgment, which showed that on April 21, 1933, the society paid to the state the credit balances then in the accounts of Julia Leary and John Barron pursuant to a judgment of escheat dated January 9, 1933, that no money had thereafter been deposited to the credit of either Julia Leary or John Barron, and that plaintiffs had knowledge of those facts. The proof thus presented constitutes at least a prima facie showing that the allegations respecting credit balances are fictitious.