McCully v. O'Connor

The Court. This action was brought February 9, 1895, to recover from the defendant, receiver of the Consolidated National Bank of San Diego, upon certificate of deposit No. 17,896, dated April 2, 1892, for eight thousand dollars, payable to the order of James L. Mason upon which certain payments had been made, leaving a [265]balance of six thousand one hundred and sixty-eight dollars and ninety cents as principal and interest. Also to recover the sum of eighteen hundred and forty-one dollars and twenty-four cents due said Mason on an open account.

The court below gave judgment in favor of the plaintiff, as administratrix, upon the open account to be paid out ■ of the assets of the bank as therein specified, and gave judgment against the plaintiff upon the amount due upon the certificate of deposit, for the reason that plaintiff had not said certificate of deposit in her possession, and is not entitled to such possession, and is not able to surrender the same for cancellation, and for the reason that plaintiff did not present said certificate of deposit to the defendant receiver at the time of presenting her claim for the sum' due thereon against the assets of the bank.

Plaintiff appeals from so much of the judgment as denied her recovery on the certificate of deposit.

The pleadings and findings of the court show fully the amount due upon the certificate of deposit, which certificate, at the date of the filing of the claim by plaintiff, and thence continually until after the bringing of this action, was in the possession and custody of the defendant herein, with whom it had been filed as evidence of the sum due thereon by George H. Cooper, a foreign administrator of the estate of James L. Mason, upon whose estate the plaintiff herein is and was the administratrix of the assets and property in this state.

It follows that if plaintiff was entitled to recover upon the certificate, no bond, security, or indemnity was necessary from her to the defendant who held the certificate.

The certificate is the same involved in the action L. A. No. 144, ante, p. 258, in which this plaintiff, as administratrix, is plaintiff and George H. Cooper as administrator is defendant and respondent, and this day decided upon appeal to this court.

For the reasons given in the opinion in that case the portion of the judgment appealed from here should be