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

THE COURT.

The respondents moved this court to dismiss an appeal from a judgment of the Superior Court of Yolo County on the ground that it abated as to the interest of J. M. Miller on account of his death, which occurred before the judgment was entered. The appellant then moved this court to substitute, as party plaintiff, Robert Powell, the assignee of Miller’s interest. Both motions were heard on affidavits. The cause was not submitted on the merits of the appeal.

The facts upon which the appeal to this court was perfected occurred as follows: The defendant, Chico Production Credit Association, the lienholder of certain warehouse receipts, for a quantity of grain, delivered them to the Bank of America National Trust and Savings Association, with written instructions to sell the grain to designated dealers for a specified sum of money, and to pay said lienholder from the proceeds of sale the sum of $240.09, and to remit the balance directly to the owner, L. M. Miller. The bank sold the grain and paid the lienholder said sum of $240.09, as directed, but refused to remit to the owner any portion of the balance of the proceeds of sale. On the contrary, the bank retained and applied the balance of said money toward the satisfaction of an outlawed judgment which the bank then held against L. M. Miller and

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others. It does not appear that, at the time of that transaction, L. M. Miller was either a customer of, or a depositor in, that bank. This suit for conversion of the funds was then commenced.

Before the commencement of this action, the claim of L. M. Miller was duly sold and assigned to the original plaintiffs, J. M. Miller and Robert Powell, for “a valuable consideration.” During the trial, a nonsuit was granted with respect to the lienholder of the warehouse receipts, Chico Production Credit Association, which was an original party defendant. An appeal from the order for nonsuit was promptly perfected by the plaintiffs. That separate appeal is now pending. After completion of the trial and submission of the cause on its merits, the court entered a minute order to the effect that judgment would be granted against the plaintiffs, and directed findings to be prepared accordingly.

On February 16, 1939, before the findings were adopted, the plaintiff, J. M. Miller, died. His death was not called to the attention of the court. Findings were not adopted or filed until November 15, 1940. In the meantime the will of J. M. Miller, deceased, was admitted to probate and Varletta Megonigal was appointed and qualified as executrix of the will. On December 16, 1940, distribution of the estate was made. By the terms of that decree, “for value received,” the entire interest of the estate in this suit for conversion was distributed March 21, 1941, to Varletta Megonigal, as trustee, with full power to sell or convey the chose in action. She subsequently sold and conveyed that interest to this appellant, Robert Powell. After that transfer of title to the chose in action, judgment was rendered against plaintiffs. It was entered on March 28, 1941. On the following day, notice of appeal from that judgment was served and filed by the plaintiff Robert Powell in behalf of both plaintiffs.