Langford v. First Nat. Bank of Atlanta ( 1970 )

Evans, Judge.

1. The motion to dismiss the appeal is not meritorious since it is based upon the fact that the enumeration of errors refers to a wrong date (one then in the future) as to the order on summary judgment it complains of. Yet the notice of appeal refers to the correct date in the record which is the only order on summary judgment which is the subject matter of this appeal. Ga. L. 1965, p. 18, as amended by Ga. L. 1965, pp. 240, 243, and Ga. L. 1968, pp. 1072, 1077 (Code Ann. § 6-810) states that the enumeration or enumerations of error "need not set out or refer to portions of the record on appeal” but "shall be concise and need not conform to the assignments of error abolished by these rules.” The error complained of here is clearly apparent and affords no basis for the motion.

2. Sums deposited with any savings bank and savings deposits taken by any bank, together with interest credited thereto, shall be repaid to the depositors, or their legal representatives, after demand in such manner at such time and after such previous notice and under such regulations as the bank shall prescribe, interest being credited at such times and at such rate as may be prescribed by the bank’s regulations. See Code § 13-2047.

3. Under such circumstances, a savings bank does not become liable for a repayment of the money until after demand for it by such rules and regulations as it issued, and the statute of limitation would not commence to run in favor of the bank until after such demand and refusal to pay. See Munerlyn v. Augusta Sav. Bank, 88 Ga. 333 (14 SE 554, 30 ASR 159).

4. A written acknowledgment of an existing liability is equivalent of a new promise to pay and constitutes a new point from which the statute of limitation begins to run. Code § 3-901; Harrell v. Davis, 108 Ga. 789 (2) (33 SE 852).

5. The evidence here shows that the appellant, who was allegedly the executrix and sole heir of a deceased husband, found confirmation papers of a certain savings account or accounts of her deceased husband with the appellee. Approaching the bank on or about June, 1962, at the earliest, and for several years thereafter, she was'advised to bring in additional evidence to prove she was the widow of one Henry Langford and that he was one and the same person as the Henry Arthur Langford of whom she is the widow, sole heir and executrix of his estate with will probated in solemn form. Appellant’s testimony that she contacted the various persons in the bank who kept telling her to produce other evidence, finally advising her to go to the attorneys of the bank before they would pay the savings account deposits over to her although the bank had at one time drawn the check to pay her, is not sufficient to show a demand and refusal to pay. Further, there is evidence in the record that the bank has continued to pay interest on the account or accounts, which amounts to new promises to pay to the said Henry Langford or his representatives and assigns, if he be deceased.

Argued June 8, 1970 Decided June 29, 1970 Rehearing denied July 20, 1970. J. L. Jordan, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, William L. Harper, Assistant Attorney General, Timothy J. Sweeney, Deputy Assistant Attorney General, for appellants. Hansell, Post, Brandon & Dorsey, H. Boyce Connell, Jr., Terrence Lee Croft, for appellee.

Consequently, based on the record in this case to date, there remains for jury determination whether or not: (1) Henry Arthur Langford, deceased, is one and the same person as the Henry Langford, owner of the savings account or accounts on which this suit is based, and (2) if the plaintiff, either individually or as executrix of said estate of Henry Arthur Langford is entitled to the principal and interest of an account or accounts deposited with appellee and/or its predecessors, the Lowry National Bank, and the Fourth National Bank of Atlanta. The court erred in granting summary judgment in favor of the defendant since the pleadings and evidence reveal issues of fact which should be submitted to a jury. Bagley v. Firestone Tire &c. Co., 104 Ga. App. 736 (123 SE2d 179); Bankers &c. Life Ins. Co. v. O’Barr, 108 Ga. App. 220, 222 (132 SE2d 546).

Judgment reversed.

Hall, P. J., and Deen, J., concur.