Churchwell v. Branch Banking & Trust Co. , 181 N.C. 21 ( 1921 )

Walker, J.,

upon the above statement, delivered the following opinion for the Court: The refusal of the plaintiff’s motion for judgment on the pleadings was manifestly correct. The plaintiff seeks to recover of the defendant bank the amount of the deposit made by her intestate, and the other defendant was made a party because she claimed an interest in the controversy, as her intestate had asserted ownership of the deposit by transfer to her, made by plaintiff’s intestate, who was her son, just before his death.

The answers of the defendants are not so framed as to constitute judicial admissions of the plaintiff’s cause of action, but, apart from the two admissions above stated, they merely state generally certain facts of a defensive character. We do not find such admissions in these pleadings as necessarily establish, as matter of law, the plaintiff’s right to recover. The bank, it must' be clearly understood, does not claim the fund, but admits that it holds it indifferently, as between the other parties, to await the decision of the court upon the question of its ownership. We will not undertake to pass upon the legal validity of the defenses until the facts are found, as the evidence may not support the defensive allegations, and the jury may find against defendants in respect to them, or the legal aspect of the case, if these allegations, for the time and for the sake of discussion, are admitted, may otherwise !>e changed so as to present entirely different questions of law. When wé closely analyze the pleadings, we find that the only essential facts, which were admitted outright by the defendants, were that plaintiff’s intestate deposited the money in the Banking and Trust Company, and that it had not been paid to him. Practically every other allegation is denied by the defendant administrator, either directly or by pleading new facts in explanation or defense and the banking company couples its admission of the deposit with averment of new matter. These answers, both of them, raise issues of fact, which should have been submitted to the jury.

The motion of plaintiff for judgment on the pleadings was in effect a demurrer to the answers, and being such, admitted the truth of the alie-gations of fact therein, but denied tbeir legal sufficiency to constitute a defense. Helms v. Holton, 152 N. C., 587, 590. A motion for judgment upon the pleadings is in the nature of a demurrer, and every in-tendment must be taken against the party making such motion. Every fact necessary to be established as a basis for the judgment asked must be admitted either by a failure to deny specific allegations or by a specific admission of the facts, and averments in the pleadings of the moving party are not necessarily to be taken as true, unless there is an absolute failure to deny them, or unless they are so specifically admitted. Alston v. Hill, 165 N. C., 258; 31 Cyc., 605. We will, therefore, await the response of the jury to the issues of fact submitted to them before deciding the question of ownership, but approve the ruling of the court upon plaintiff’s motion.

The judge, though, erred in further adjudging that defendants go hence without day, and taxing plaintiff with the costs of the action. This took her ease out of court; whereas, she was entitled to stay in and have the issues determined. Her stating that she had no eyidence other than the admissions of the pleadings to offer did not deprive her of this right. She had a prima facie case, or acquired the right to carry her ease to the jury, by virtue of the two admissions. If the bank received the fund, and has not paid it to the depositor or to his representative, on demand, it is liable to plaintiff, unless in some way excused for the default, and the burden of showing this is upon it. If the other defendant claims the fund, he must show it. 5 Cyc., 517; Egbert v. Payne, 99 Pa. St., 239; Bank v. Frankish, 91 Pa. St., 339; Graham v. Williams, 21 La. Ann., 594; 9 C. B., 509; 67 E. C. L., 509. “A deposit should not be transferred from one account to another without ample authority, and what is sufficient authority is a question of fact (and law), which is to be answered whenever it arises.” 5 Cyc., 518, and cases in notes 66 and 67. She says that her son gave it to her, the gift to take effect during his life, and further, that in accordance with his request or direction, he having turned over his pass-book to het, which she delivered to the bank, it was duly transferred to her on the ledger of the bank, and a new pass-book, having the same number, was issued to her.

The administrator of Mrs. Mary E. Churchwell relies much upon the allegation that his pass-book in the savings bank was delivered to her by her son, and that the transfer on the books of the bank was made during his lifetime, as constituting a valid gift inter vivos. There is some authority for the position (Magee on Banks and Banking (2 ed.), p. 336, citing Goodrich v. Rutland Savings Bank, 81 Vt., 147), but we merely refer to it without giving any opinion or intimation in regard to its correctness, as we are not called upon to do so at this time.

It is apparent that in the present state of the case we cannot determine who is the owner of the fund until the controverted facts are settled, one way or the other. "Whether the defendants, or either of them, can establish, by legal evidence, the defenses pleaded is not now for us to say. They have, though, the right to be heard.

The ruling of the learned judge as to the motion of lolaintiff is approved, and she will be taxed below with the costs of the motion. The remainder of the judgment was erroneous, and is reversed. The case will he tried in the usual course. The costs of this Court will he divided,, plaintiff to pay one-half and defendants the other half.

Error.