Fulton, Supt. of Bks. v. Ferguson

Full title: FULTON, SUPT. OF BANKS v. FERGUSON

Court: Court of Appeals of Ohio

Date published: Dec 19, 1932

185 N.E. 887 (Ohio Ct. App. 1932)

185 N.E. 887

Opinion

Decided December 19, 1932.

Banks and banking — Liquidation — Petition liberally construed on demurrer — Proceeds of World War veteran's bonus certificate preferred, when.

1. Petition must be liberally construed on demurrer.

2. World War veteran had preferred claim against bank in hands of superintendent of banks for balance of proceeds of bonus certificate constituting veteran's only deposit, where deposit was not in savings department nor at interest.

ERROR: Court of Appeals for Wood county.

Mr. J.E. Kelly, Mr. Lelan S. Middleton and Mr. Wm. Dunipace, for plaintiff in error.

Mr. Benjamin F. James, for defendant in error.

RICHARDS, J.

Charley Ferguson, by his pleading, averred that he is a World War veteran and as such received, about April 3, 1931, from his bonus certificate the sum of $294.50, which he deposited in the Hoytville Bank Company. He further avers that he drew from said deposit on August 17, 1931, the sum of $204.09, leaving a balance of $90.41 remaining in the bank. He alleges that he never deposited in the bank any other moneys than said sum of $294.50, and he never mingled any money with that deposit. The bank has been taken over for liquidation by Ira J. Fulton, superintendent of banks. Ferguson claims in his pleading that he is entitled to have the balance due him allowed to him as a preferred claim.

This pleading is met by a general demurrer filed by the superintendent of banks. That demurrer was overruled, and the superintendent of banks not desiring to plead further, final judgment was rendered finding that the claimant was entitled to a preferred claim.

Following the statutory requirement, the pleading must be liberally construed, and so construed it states a good cause of action.

It will be observed from the averments of the pleading that the claimant has not mingled any other money with the deposit which he made of the proceeds of his bonus certificate, and that the same was not deposited in a savings department of the bank nor on interest. The identity of the fund has thus been preserved and the claim is entitled to preference under the federal statute. The judgment allowing the preference must be affirmed on authority of Ramisch v. Fulton, Supt. of Banks, 41 Ohio App. 443, 180 N.E. 735.

Judgment affirmed.

WILLIAMS, J., concurs.