Evans v. Bank of Italy

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover a sum of money theretofore deposited with the defendant. The defendant appeared and answered and a trial was had before the trial court sitting without a jury. The trial court made findings in favor of the defendant, and from a judgment entered thereon the plaintiff has appealed and has brought up the judgment-roll.

[261]

The plaintiff makes the contention that on the findings as written the trial court should have ordered judgment for him as prayed. This contention is made because the findings show the following facts: On March 26, 1927, the plaintiff deposited with the defendant in its savings department the sum of $300; on June 30, 1927, interest accrued in the sum of $3; and December 29, 1927, the plaintiff applied to the bank to withdraw therefrom $303, but his application was refused. In reply the defendant calls to our attention that the findings also show the following facts: On the fifth day of August, 1927, an attachment was served on the defendant attaching all moneys due from the defendant to Henry Evans; that thereupon the defendant notified the plaintiff in writing of said service of said writ of attachment and that defendant had debited the plaintiff’s account with the amount of said attachment, to wit, the sum of $302, that being the amount of the attachment, interest and costs; that the plaintiff received said notice in writing and failed and neglected to communicate with the defendant or notify this defendant that plaintiff was not the said Henry Evans mentioned in said writ of attachment. On the fifth day of October, 1927, the defendant was served with a writ of execution in the attachment suit. On that date the plaintiff had not notified the defendant that he was not the Henry Evans mentioned in the attachment suit and thereupon defendant paid to the sheriff so levying the writ of execution $302. On the fifteenth day of December, 1927, for the first time, the plaintiff notified the defendant that he was not the Henry Evans defendant in the attachment suit. The trial court also found as a fact that Henry Evans, this plaintiff, is not the Henry Evans named as defendant in the attachment suit. The defendant further calls to our attention that the trial court made a finding to the effect that the defendant was not negligent in doing what it did and that the plaintiff is estopped.