Satterwhite v. Melczer , 3 Ariz. 162 ( 1890 )

KIBBEY, J.

On the 24th of March, 1889, the appellees were copartners in the banking business at Nogales, Arizona, and had on general deposit, in the ordinary course of their business, $1,233.91, the money of one Morgan R. Wise. On that day, James Speedy, a constable of district No. 18 of Pima County, had in his hands an execution issued on a judgment rendered in the district court of Pima County, in favor of J. C. Waterman, against F. M. Yernon, S. B. Wise, and Morgan R. Wise, for $506, upon which there was due that amount, and accrued interest and costs. On the 25th of March the constable, as he testifies, levied upon $1,233.91 belonging to Morgan E. Wise, the same being held under an injunction issued out of the district court for Pima County; also notifying Melczer & Co. that, if that injunction was dissolved, that execution would hold good. This the constable says,' in response to a question asked him to detail all the circumstances of the service of the execution, was all he did. The officer did not take possession of the money. The constable indorsed upon the execution his return, which is as follows: “I hereby certify that I received the within execution on the twenty-fourth day of March, 1889, and served the same on the twenty-fifth day of March, 1889, by levying upon $1,233.91 in the hands of William Melczer & Co., at Nogales, Pima County, A. T., belonging to the within-named defendant, Morgan Wise; the above being amount under attachment and suit pending in district court, Pima County, A. T. [Signed] James Speedy, Constable, Precinct No. 18.’-’ The execution was dated 20th March, 1889, and was returnable within ninety days. Nothing more was done under the writ. On the seventh day of June, 1889, Morgan E. Wise signed and gave to the appellant a check upon appellees for $642. On the 24th of June, 1889, the check was presented to appellees for payment, which was refused because of the levy, if levy it was, of the Waterman execution. Wise had at that time a credit of $642 with Melczer & Co. On the 26th of June, 1889, appellant began suit against appellees for $642. There was a trial by the court, and finding and judgment for the appellees.

This case presents some anomalous features. The complaint alleges that on the 24th of June, 1889, the appellees were indebted to appellants in the sum of $642.50; that on said day said sum of money was on deposit in appellees’ bank, subject to appellant’s order, and was due the appellant, and unpaid; and that appellant on said day drew on appellees, •and payment was refused. The complaint is insufficient to constitute a cause of action, upon the theory of plaintiff. The only legal inference to be drawn from it is that appellant had deposited $642.50 with appellees, and that appellees refused to honor his cheek for that sum. But the facts disclosed upon the trial, and before stated, negative any such inference. The trial proceeded upon the theory, without question, that appellant, as holder of a check drawn by Morgan R. Wise for $642.50 upon appellees, had a cause of action against ■ appellees for their failure to pay the check upon presentation. It is not pretended that appellees accepted the check, or did any act equivalent to an acceptance. A bank is not liable to the holder of a check drawn by a general depositor for its refusal to pay the check, though the bank has sufficient funds of the drawer to pay the amount called for. Bank v. Millard, 10 Wall. 152; Bank v. Whitman, 94 U. S. 343; Ætna Nat. Bank v. Fourth Nat. Bank. 46 N. Y. 82, 7 Am. Rep. 314, and numerous other cases. And especially would the bank be not liable for its refusal to pay the check under circumstances such as those that existed in this case, where it must determine between the rights of rival claimants. It is unnecessary for us to proceed further to consider the question raised and discussed by counsel in their briefs. Two points, however, we will notice, as they may again arise in subsequent proceedings. Appellant contends that the levy of the execution was insufficient—1. Because it was addressed to, and served by, an officer unauthorized thereto by law; and 2. That the money levied upon by the officer was not reduced to possession by him.

Section 2 of the Acts of 1889 (p. 37) prescribes specifically that the execution must be directed to the sheriff of the county where it is to be served. This repeals the provision in paragraph 1895 of the Revised Statutes of 1887 that the execution might be directed to the sheriff or any constable of the county. Appellees argue that the mention of the ■“sheriff or other officer” in other parts of the act of 1889 evinces the intention of the legislature not to repeal the provision in the Revised Statutes of 1887. The “other officer” referred to in the act of 1889, we think, refers to the provision of section 512 of the Revised Statutes of 1887, which designates •other officers who shall perform the duties of sheriff in case of his disqualification by reason of interest. The attempted levy was insufficient. The money, to have constituted a valid levy, must have been reduced to possession by the officer. This is expressly required by statute. Clause 2, sec. 9, Acts 1889, p. 39. Appellees contend that the acts of the officer constitute a levy upon a debt due Morgan R. Wise. We think clearly not. The fact that the bank was a simple debtor of Wise, and that Wise had no specific money in the hands of the bank as bailee, cannot now operate to give a different effect to the acts of the officer. It simply shows that the officer was mistaken either as to the facts, or in the matter of his duty.

There are other questions presented, but, for the reason first stated, the judgment must be affirmed; and it is so ordered.

Sloan, J., concurs.