Sanders v. W. B. Worthen Co. , 122 Ark. 104 ( 1916 )

Hart, J.,

(after stating the facts). The defendant Grladys Gr. Sanders asked that the case be transferred from the 'chancery court to the circuit court and now assigns as error the action of the chancellor in failing to transfer the cause.

Under the record as presented we need not decide whether this cause was of equitable cognizance. Section 5991 of Kirby’s Digest provides that an error of the plaintiff as to the kind of proceedings adopted shall not cause an abatement or dismissal of the action 'but merely a change into the proper proceedings by amendment in the pleadings and a transfer of the action to the proper docket.

iSection 5993 of Kirby’s Digest provides that such error is waived by failure to move for its correction at the time and in the manner prescribed in the statute and that such errors are waived unless excepted to at the time.

The record does not show any order of the court passing upon the motion of the defendant to transfer the cause from the chancery court to the circuit court and under the sections of the statute above referred to the defendant will be deemed to have waived her motion.

The transcript does contain 'the following language: “It is agreed that the testimony shall be taken by a stenographer, the notes written ¡and transcript used as depositions, same being taxed as costs. After reading the complaint of plaintiff by Mr. Lewis and reading the answers by Mr. Reigler a discussion ¡arose between the attorneys for the defendants with the court as to its jurisdiction, the attorneys for defendants stating that plaintiff had an adequate remedy at law ¡and no cause to enter this court. The court refused to transfer this cause, holding that it was within proper jurisdiction, to which defendants excepted. ’ ’

(1) It was proper to agree that the testimony should be transcribed ¡and used ¡as depositions. The testimony of the witnesses, when transcribed, under the agreement, became a part of the record. The recital of the discussion between the attorneys for the defendant and the court did not become a part of the record. The subject of the record on appeal in chancery cases has been considered by this court in several cases. The case of Rowe v. Allison, 87 Ark. 206, cites many of our earlier cases on the subject and clearly points out what is necessary to bring matters into the record in chancery oases. Counsel for the defendants should have caused an order to be entered of record overruling the motion to transfer the cause to the circuit 'court. Such, an order would have become a part of the record on ¡appeal. Not having done so, defendants will be deemed to have waived their objections to the jurisdiction of the chancery court.

(2) The statement above refered to as appearing in the transcript is not even ¡authenticated by the stenographer’s certificate or by the certificate of the clerk; but even if it were, as above stated, that would be insufficient to make it a part of the record on appeal.

This brings us to ¡a consideration of the case on its merits.

(3) When a cheek is taken to a hank and the bank receives it and places the amount to the credit of the customer, the title to the check is vested in the bank. The rule as stated is not an ¡absolute rule but it is prima facie merely and yields to the intention of the parties, express or implied, from the circumstances. Southern Sand & Material Co. v. People’s Savings Bank & Trust Co., 101 Ark. 266; Arkansas Trust & Banking Co. v. Bishop, 119 Ark. 373, 178 S. W. 422; Fayette National Bank v. Summers, 105 Va. 689, 54 S. E. 862, 7 L. R. A. (N. S.) 694, and case note.

(4) Tested by this rule, the decision of the chancellor was not against the preponderance of the'evidence and must be upheld on appeal. The facts as disclosed by the record show that both banks are situated in the city of Little Rock -and diagonally across the street from each other; that Ortagus deposited the check in question one -afternoon and the check was credited to his account; that the -bank kept the check until the next morning when it w-as carried to the -clearing house in due -course; that before 'that time Ortagus had checked the amount out in various small amounts to meet his pay roll; that the Worthen Company had no notice whatever of -any infirmities in the check.

Under these circumstances, -the chancellor was justified in finding -that it was the intention of the parties that the title to the -check -should pass to the bank when it received it and -credited the -amount thereof to the account of Ortagus.

Th-e -chancellor was also -warranted in finding that Gladys G. S-anders signed the check. It is true that she denied signing it, but the record shows that she also denied ¡signing another check made payable to Ortagus but afterwards admitted' having signed it. ' The assistant cashier of the Exchange National Bank testified that he knew her signature and that the signature to the check was her genuine -signature; and the president of the Worthen Bank compared the signature to the check with the admitted genuine signature of Gladys G. Sanders and testified that the signature to the cheek was the genuine signature of Gladys Sanders.

The decree is affirmed.