John M. C. Marble Co. v. Merchants' National Bank

This appeal is taken from a judgment by which plaintiff was awarded certain relief, and which provided that neither party recover costs. The matters sought to be reviewed are presented on the judgment-roll alone. As found by the trial court, the facts are as follows: On February 8, 1909, one John T. Donnell delivered to plaintiff his check drawn upon the defendant bank for the sum of $2,685; the check was presented for payment on the following morning at the bank and payment was refused, the bank giving as a reason for the refusal that there was not sufficient funds to the credit of Donnell to cover the required amount. Thereupon plaintiff brought suit against Donnell and had a writ of attachment issued therein on February 13, 1909, which writ it caused to be served upon defendant; judgment was recovered on March 3, 1909, against Donnell in favor of plaintiff for the sum of $2,697.02 and costs. Upon being served with the writ of attachment, defendant answered that it had in its possession the sum of $1,175.92 belonging to Donnell, and subsequently delivered this amount of money *Page 349 to the sheriff, who applied it on the execution which had been issued to secure satisfaction…

The petition of appellant for a rehearing is denied. The question as to whether or not the trust attempted to be created by Donnell and others was valid we did not deem material to a decision of this case. Of course, if the declaration of trust was invalid under the conveyance to the trustee, *353 a resulting trust would have arisen in favor of Donnell and his associates who had contributed the purchase price of the real property; and, in that event, they might have demanded a reconveyance of their respective interests. The assignment to the bank did not purport to convey any interest in real property; it was not appropriate in form so to do, and the intent was clearly to the contrary; it was plainly an assignment of the right to share in the proceeds of the sale of the property, if the same were sold, and nothing more; the bank made no other claim; there was no attempt to mortgage the interest of Donnell in the real property. As was said in the opinion filed, the assignment was an assignment of an interest in personal property given by way of a pledge, and not as a mortgage.

This appeal is taken from a judgment by which plaintiff was awarded certain relief, and which provided that neither party recover costs. The matters sought to be reviewed are presented on the judgment-roll alone.

As found by the trial court, the facts are as follows: On February 8, 1909, one John T. Donnell delivered to plaintiff his check drawn upon the defendant bank for the sum of $2,685; the check was presented for payment on the following morning at the bank and payment was refused, the bank giving as a reason for the refusal that there was not sufficient funds to the credit of Donnell to cover the required amount. Thereupon plaintiff brought suit against Donnell and had a writ of attachment issued therein on February 13, 1909, which writ it caused to be served upon defendant; judgment was recovered on March 3, 1909, against Donnell in favor of plaintiff for the sum of $2,697.02 and costs. Upon being served with the writ of attachment, defendant answered that it had in its possession the sum of $1,175.92 belonging to Donnell, and subsequently delivered this amount of money *349 to the sheriff, who applied it on the execution which had been issued to secure satisfaction of…