State v. McCoy ( 1949 )

¹ Reported in 88 N.W.2d 386. On May 8, 1915, defendant Samuel Rettinger, on behalf of himself, Bayard T. Shaver, and August C. Hehl, acting as trustees for beneficiaries of a trust who did not appear in this action, deposited $397.67 in the State Bank of Long Lake, Long Lake, Minnesota, and was issued a certificate of deposit, bearing four percent interest and payable one year from date, to evidence the deposit. On November 1, 1917, Rettinger, on behalf of himself, Bayard T. Shaver, and August C. Hehl, acting as trustees for the same beneficiaries, deposited $265 in the same bank and received the same type of certificate as evidence of that deposit. Both of these certificates are still outstanding and unpaid, and defendants have not dealt with the deposits by adding thereto or withdrawing therefrom from the date of the deposits to the time of the commencement of this action, June 11, 1947. Rettinger was given custody of these certificates, but he has since inadvertently lost or misplaced them.

From the time when the original deposits were made until the commencement of this action, defendants had frequently discussed the matter of these deposits among themselves, and, upon inquiry, Rettinger had reported to individual beneficiaries of the trust that the money was still on deposit. In 1946, the cashier of the bank spoke to Rettinger about the deposits and informed him that he would have to post a bond to get either the money or new certificates of deposit. Rettinger did nothing in this regard prior to this suit by the state.

On June 11, 1947, the attorney general, in the name of the state, commenced this action under M.S.A. 48.525 to have the deposits declared escheated and to enforce the rights of the state. The procedural requisites under the statute were fulfilled, and defendants interposed an answer denying that they had abandoned the funds left on deposit. Section 48.523 provides:

"Any person who has left on deposit, or otherwise, with any banking institution or financial institution any funds or other property, and has not dealt therewith for a period of 20 years by adding thereto, withdrawing therefrom, or asserting any claim thereto, is presumed to have abandoned the same."

The trial court found that the funds had been abandoned, and it concluded that the funds had therefore escheated to the state and that the state was entitled to them. Defendants moved for amended findings and conclusions or, in the alternative, for a new trial, and from the order denying that motion they appeal.

1. Section 48.522 provides:

"When any person abandons any funds or other property which have been left on deposit, or otherwise, with any banking institution or financial institution, the same shall, with the increase and proceeds thereof, escheat to and become the property of the state."

The above section operates only upon abandoned funds and transfers title therein to the state. Therefore, the only question for our decision here is whether or not there was an abandonment of these funds and, as a consequence, an escheat to the state. Defendants contend that, since they have appeared and defended the action by the state to have these funds declared escheated, it cannot be said that they have abandoned the funds, and that therefore the trial court's finding that "defendants, and each of them, have abandoned the funds" was not justified by the evidence.

In a general sense, abandonment is the voluntary relinquishment, surrender, or disclaimer of a known property right, absolutely and without reference to any particular person or purpose. It involves two elements — act and intention — and without the concurrence of these there can be no abandonment. There must be an actual relinquishment of possession accompanied by an intent to part permanently with property in the goods. Erickson v. Sinykin, 223 Minn. 232,26 N.W.2d 172; 1 Am. Jur., Abandonment, § 2; 1 Dunnell, Dig. Supp. § 1. Abandonment is an issue of fact and is determined by the trier of fact. State v. N.W. Nat. Bank, 219 Minn. 471, 486,18 N.W.2d 569, 577. Goods are abandoned when an owner, with specific intent to relinquish his ownership in the property, casts the property aside, or when an owner who has accidentally lost his property ceases to look for it and gives it up as gone from him forever. Brown, Personal Property, § 6, p. 9.

Findings of fact of a trial court are entitled to the same weight as the verdict of a jury and will not be reversed on appeal unless they are manifestly and palpably contrary to the evidence. This rule applies whether the appeal is from a judgment or from an order granting or denying a new trial. Lipinski v. Lipinski,227 Minn. 511, 35 N.W.2d 708.

Section 48.523 raises a statutory presumption that any person who has left funds on deposit, or otherwise, with any bank and has not dealt with these funds by adding thereto or withdrawing therefrom or asserting any claim thereto for a period of 20 years has abandoned them. This presumption, of course, is not evidence, but a rule of law dictating decision on unopposed facts and shifting the burden of going forward with the evidence to the party against whom the presumption operates. State v. N.W. Nat. Bank, 219 Minn. 471, 18 N.W.2d 569,supra. Under the facts and circumstances of the instant case, this presumption operated to sustain the state's original burden of proof and to shift the burden of going forward with the evidence to defendants. By their appearance in this action, defendants have rebutted this presumption and have shown that their intention never was to relinquish their claim to these funds. This intention is a necessary element of abandonment, and without it the state cannot establish the fact upon which its right depends.

Section 48.527 provides in part:

"Any person claiming to be legally entitled to any of the funds or other property involved in any action commenced under the provisions of section 48.525, who did not appear in saidaction, may, within a period of ten years after the entry of judgment therein, sue the state to recover the funds or other property of which it was alleged he was the owner or depositor, * * *." (Italics supplied.)

It cannot reasonably be contended that defendants, who answered the state's complaint and appeared in this action to contest the state's claim of abandonment, should, by the terms of § 48.527, forfeit their right under that statute and be in a worse position than if they had failed to answer the complaint, but had appeared within the next ten years to assert their claim to the fund. In spite of their appearance and in spite of the evidence introduced by defendants at the trial to show their intention to continue to exercise dominion over the fund, the trial court found that defendants had abandoned the fund. Outside of the presumption raised by the statute, which defendants have rebutted effectively, we find no evidence in the record to support this finding.

2. Where the facts of a case are in dispute, this court will not make or amend findings of the trial court, or even remand a case with directions that the findings be amended in accordance with this court's decision. However, where possible within the limits of this court's appellate jurisdiction, the merits of a case will be determined, Droege v. Brockmeyer,214 Minn. 182, 7 N.W.2d 538; Penn A. M. Co. v. Clarkson Sec. Co. 205 Minn. 517, 520-521, 287 N.W. 15, 17, and a new trial will not be granted simply because the findings of the trial court are not supported by the evidence if proper findings can be directed by the supreme court without injustice to the parties. Cf. Hunt v. Meeker County A. L. Co. 135 Minn. 134,160 N.W. 496.

In the instant case there is no need for a new trial. The case is therefore reversed with directions to amend the findings and conclusions to show that there was no abandonment.

So ordered.

UPON APPEAL FROM CLERK'S TAXATION OF COSTS. On June 24, 1949, the following opinion was filed: