Fulton v. Campbell , 13 Ohio Law. Abs. 330 ( 1932 )

BY THE COURT

In the Campbell and Buckenmyer cases the accounts being commercial accounts, there was no interest payable, but in our judgment the identity of the fund was lost by reason of the fact of commingling the fund with other funds in a checking or commercial account. In the Samiec case the identity of the fund was lost by reason of the fact that it was loaned to the bank for interest, the same being a savings account. In our judgment, a deposit of a loan on an adjusted service certificate in a savings account at interest is of itself sufficient to destroy the identity of the fund and prevent preference, as it was loaned to the bank. The savings account, moreover, was jointly in the name of Samiec and his wife. It therefore appears that he had given an undivided interest in the fund to her.

We call attention to what this court has said in an opinion filed this day in the case of Fulton v Stempien, (13 Abs 329).

As none of the claims is entitled to preference, the petitions are demurrable and the court below committed prejudicial error in overruling the demurrers and in sustaining the motions for judgment on the pleadings in favor of the plaintiffs.

For the reasons given the judgments will be reversed and the causes remanded with directions to sustain the demurrers and overrule the motions for judgment on the pleadings and for further proceedings not inconsistent with this opinion.

Reversed and remanded.

LLOYD, RICHARDS and WILLIAMS, JJ, concur.