Lewis v. O'BRIEN

AGEE, Acting P. J.

On March 4, 1965 judgment was entered in favor of Rubin Lewis, as trustee, and against Tillie O’Brien,

individually,

for $4,000 and against her,

as administratrix

of her father’s estate, for $2,000.

Tillie’s father had died during the pendency of the action and Tillie was appointed administratrix of his estate on the morning of trial, solely for the purpose of presenting a defense on his behalf. Actually, he left no estate.

On April 29, 1965 Tillie deposited $4,689.47 of her own funds in the Hibernia Bank to the credit of Rubin, her purpose being to satisfy the judgment rendered against her individually, plus costs and interest.

The amount required to satisfy the judgment against Tillie individually was only $4,431.34 but her attorney explained that the overpayment was due to a miscalculation of the interest.

Rubin applied the amount deposited as follows: $2,409.40 was used to satisfy the judgment against the

estate

of Tillie’s father, plus interest thereon of $21.95, plus joint costs of suit of $387.45. The balance of the deposit was applied to the principal and interest due on the individual judgment against Tillie, leaving a balance due thereon, according to Rubin’s contention, of $1,763.53 as of April 30,1965.

On May 19, 1965 Tillie filed a motion to compel Rubin to-execute an acknowledgment of satisfaction of the judgment against her individually. On August 16, 1965 an order was made granting the motion. This appeal is by Rubin from that order.

1

Appellant’s position is as follows: when respondent made the bank deposit on April 29, 1965 she gave no instructions to the bank as to how the funds were to be applied; appellant’s attorney received notice of the deposit from the bank on April

[630]

30 and on that same day allocated the funds as stated above; appellant’s attorney notified respondent’s attorney by letter mailed April 30 of this allocation; a letter from respondent to appellant’s attorney, although dated April 29, was mailed on April 30 and received in the attorney’s office on May 1; this letter stated that the deposit was for the payment of the judgment, costs and interest on “the judgment against me individually” and that “I have made this deposit because of your refusal to accept the amount of judgment against me individually as satisfaction of the judgment against me individually”; on May 6, in response to a letter from respondent’s attorney requesting return of the overpayment due to “a bank error” and the application of the balance in accordance with respondent’s letter of April 29, appellant’s attorney replied that he refused such request because “Mrs. O’Brien’s letter was not sent simultaneously with the payment of the moneys represented by the bank account. ’ ’