Weiss v. Bank of America National Trust & Savings Ass'n

SPENCE, J.

Plaintiff sought to quiet title to $1150 in currency. The defendant bank filed an answer denying the material allegations of the complaint but admitting that it held the sum of $1150 as bailee for the lawful owner thereof and that it claimed no other interest therein. Defendant Mary Gilmore filed an answer and cross-complaint denying the material allegations of the complaint and alleging that she was the owner of the sum of $1150 held by the defendant bank by virtue of finding said sum and taking proceedings under sections 1864 to 1871 of the Civil Code. The trial court found against plaintiff and against defendant Gilmore on their respective claims of ownership of the sum of $1150 held by the defendant bank. Judgment was therefore entered to the effect that neither plaintiff nor defendant Gilmore was the owner thereof and that the defendant bank should retain possession thereof as bailee for the lawful owner. Plaintiff alone appeals from said judgment. Defendant Gilmore died prior to the trial and defendant Berringer was substituted as administratrix.

Plaintiff states his contentions in various ways but said contentions may be summarized as follows: (1) that the evidence was insufficient to support the findings; (2) that the findings were insufficient to support the judgment; and (3) that the trial court committed reversible error in failing to rule upon plaintiff’s motion to dismiss the cross-complaint of defendant Gilmore.

In considering the sufficiency of the evidence to support the findings, it is elementary that we must disregard conflicts and consider only the evidence tending to support

[894]

said findings. Said evidence shows that defendant Gilmore, an elderly woman, was the mother of defendant Berringer, who was subsequently substituted as administratrix in this action; that each of said parties had a safe deposit box in the defendant bank; that on April 17, 1935, they visited the safe deposit vault .and entered a booth located therein; that they found some currency at that time in an envelope; that on the outside of said envelope was the figure “$1150”; that the currency was contained in two currency wrappers, one wrapper containing $700 and the other wrapper containing $450; that they became excited and did not know what they should do; that defendant Berringer finally suggested that they place the money in her safe deposit box and seek the advice of her husband; that they did so and thereafter returned with the husband two days later on April 19, 1935, and delivered the money to an employee of the bank, explaining the circumstances under which it was found and taking a receipt for the money; that nothing further was done with respect to the money, except to make inquiry of the bank concerning it, until almost five years later when defendant Gilmore purported to institute proceedings under sections 1864-1871 of the Civil Code.