Martin v. Minnekahta State Bank

Citations

• 7 S.D. 263
• 64 N.W. 127
• 1895 S.D. LEXIS 68

Syllabus

<p>1. On the first day of August, 1890, a default judgment was obtained and entered against the defendant and another. Twelve days later an execution previously issued was levied by the sheriff upon money in defendant’s possession, which was seized and taken into the actual possession of the officer, who satisfied the judgment and immediately deposited the money to his own individual credit in defendant’s bank, taking a negotiable certificate therefor in the usual form, which was immediately thereafter, by indorsement, transferred to plaintiff and placed to his credit in said bank subject to check. After defendant had paid a check drawn by plaintiff upon said account for a portion of the amount so deposited, and after a refusal by the bank to honor a check for the balance thereof, the court vacated and set aside the judgment, for the purpose of allowing one of the defendants to answer. Held, in the absence of a stay of execution or order of restitution, that the defendant bank-was legally divested of the subject matter of the suit, and not entitled under the circumstances to withhold the money from plaintiff, nor to assert that the same was deposited in the name of plaintiff, but for and on behalf of the judgment creditor.</p> <p>2. Where a case is tried without a jury, and evidence that is immaterial and incompetent under the pleadings has been admitted by the court over a valid objection, such evidence requires no specific finding of fact and it is not prejudicial error to entirely disregard the same.</p> <p>3. A court who tries issues of fact and makes its findings and conclusions of law, which are concurrently filed with the judgment based thereon, has power to seasonably make additional though entirely consistent findings, conforming more specifically to the decision as orally announced at the conclusion of the trial and to file the same as of the date the original findings were filed and entered.</p> <p>4. When a bank receives a deposit and unconditionally pla