Opinion
Rehearing Denied May 9, 1935.
Hearing Granted by Supreme Court June 10, 1935.
Appeal from Superior Court, Los Angeles County; Walter Guerin, Judge.
Action by Esther A. Walters against the Republic Securities Corporation, wherein an attachment was issued and served upon the Bank of America National Trust & Savings Association. From a judgment in favor of the plaintiff, the defendant Bank of America National Trust & Savings Association appeals.
Judgment modified, and, as modified, affirmed.
COUNSEL
Louis Ferrari, of San Francisco, and Edmund Nelson and G. L. Berrey, both of Los Angeles, for appellant.
Archie A. Smith, of Los Angeles, for respondent.
OPINION
SHINN, Justice pro tem.
Action against defendant bank, as garnishee. The case was tried by a jury, which rendered a directed verdict in favor of plaintiff. Defendant appeals from the judgment entered thereon.
The complaint alleged that, in an action brought by plaintiff against Republic Securities Corporation, an attachment was issued and was duly and regularly served by the sheriff upon defendant bank, attaching all moneys due and owing, belonging to said Republic Securities Corporation; that plaintiff duly recovered judgment against said Republic Securities Corporation; that at the time of the levy the bank was indebted to or had in its possession and under its control moneys or credits of the judgment debtor in an amount in excess of plaintiff’s judgment; that an execution was issued and returned unsatisfied; that no moneys were ever paid over by the defendant to the sheriff or to plaintiff; and that plaintiff had been damaged thereby in the sum of $9,442.22, together with interest thereon. The defendant by its amended answer set up numerous defenses; one of these being that there was no valid service of the attachment.
The sheriff’s return on the writ certified that he had "duly attached all moneys, goods, credits, effects, debts due or owing, or any other personal property belonging to the defendants therein named, or either of them, in the possession or under the control of the Bank of America of California, 7th and Spring St. by delivering to and leaving with R. C. Elliott, Assistant Cashier of said bank, personally, in the County of Los Angeles on the 10th day of May, A.D. 1930, a copy of said writ of attachment," etc. Under section 542 of the Code of Civil Procedure, debts owing to a defendant by a banking corporation or credits under its control must be attached by leaving a copy of the writ and notice "with the manager or any other officer of such banking corporation or association," etc. The return of the sheriff did not show that R. C. Elliott was an officer of defendant corporation; neither did it show that he was not. This situation is one in which it is proper to presume that official duty has been regularly performed (section 1963, Code Civ. Proc.), and under this rule it should be presumed that Elliott, the assistant cashier, was an officer of the bank. Porter v. Pico, 55 Cal. 165, 172; Griffin v. American Gold Mining Co. (C. C. A.) 136 F. 69. The presumption, of course, may be overcome, but in weighing the evidence on the subject it cannot be denied consideration.
There is no contradiction of the return as made in presuming that Elliott was an officer of the bank. Parol evidence was properly introduced to show the duties of Elliott in the bank. Brusie v. Gates, 80 Cal. 462, 22 P. 284; Porter v. Pico, supra. Elliott himself testified that he was an assistant cashier, and that he was a junior officer; that he had been designated by the other officers and higher officers of the bank to accept service of writs and other process and was the one to whom the papers would automatically go, regardless of who first received them; that they came to his desk in any case, and it was his duty to take the proper steps to search the records and give notice to all departments and branches of the bank. Marco Hellman, who was vice president and chairman of the executive committee of the bank at the time of the attachment, testified that Elliott was chief clerk and assistant cashier; that his appointment as such had been confirmed by the board of directors; that the usual practice in the bank was to send those desiring to serve process to Elliott to have the papers served; and that he in regular course turned them over to the legal department. After receiving a copy of the writ, the bank made a return thereon to the sheriff in which it was not stated whether the bank was indebted to defendant Republic Securities Corporation, but which did state, "Defendant indebted to bank." On the day of the levy a Mr. Brown, one of the vice presidents of the bank, had a conversation with James L. Wright, president of the Republic Securities Corporation, in which Brown informed Wright that an attachment had been levied against the account of the corporation, and that he (Brown) had a document there relating to the attachment in the sum of $9,500. Within its own organization the bank recognized the service as a valid one. An entry was made on the ledger sheet of the checking account "hold all a/c attached 5-10-30," and the bank made answer to the garnishment to the sheriff without indicating any claimed insufficiency of the service.
Certain other actions of the bank, taken in connection with the account of Republic Securities Corporation, which will be referred to later, also tended directly to show that the bank recognized the service on Elliott as service on the bank.
Appellant, although now urgently contending that the evidence was insufficient to prove that Elliott was an officer upon whom service could be made, was content at the trial to submit the question without offering evidence on its own behalf. If the testimony of Elliott and Hellman were not true, if Elliott were not one of its officers, and if the bank had some other practice than the one testified to and it was customary to direct process servers to some other person in the bank, evidence of such facts was available to the defendant, and its failure to introduce the same gives added weight to the testimony of the witnesses who did testify on the subject.
Appellant cites Liberty Bank v. Superior Court, 195 Cal. 766, 235 P. 995, 998, as authority for the proposition that an assistant cashier is not an officer of a banking corporation. In that case an order had been made requiring Charles F. Partridge, the assistant cashier of the Liberty Bank of San Francisco, Cal., to personally appear in the superior court of Los Angeles to show cause why an order should not be made directing him as assistant cashier of the bank to turn over to the plaintiff, in the action in which the order was made, all sums of money owing to or deposited to the credit of the judgment debtor. It was said by the court, in holding the order insufficient, that the recital did not show that Partridge was either an officer or member of the corporation, and that "ordinarily an assistant cashier of a corporation is neither an officer nor a member thereof in the sense that he exercises any such control over the disposition of the property or money in the custody of such corporation as would render him the proper subject of an order requiring him in that capacity to turn over the said money or property in the custody or keeping of such corporation to a stranger to it and in an action to which it is a stranger." We find nothing in this language contrary to the conclusion we have reached.
When the Code section prescribing how service must be made on a banking institution was amended in 1927 (page 852), (section 542, Code Civ. Proc.) so as to allow service on a manager or any other officer, the purpose no doubt was to do away with disadvantages resulting from the designation of specific officers as the only ones to receive process. The tendency of this amendment is toward the rule stated in Roehl v. Texas Co., 107 Cal.App. 691 at page 704, 291 P. 255, and approved in Milbank v. Standard Motor Con. Co., 132 Cal.App. 67 at page 71, 22 P.2d 271, 272, where it was said, in connection with service of summons on an agent of the defendant corporation: "We hold the true rule to be * * * that ‘every object of the service is obtained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made."’ We would be at a loss for reasons justifying a holding that the service was invalid in the instant case. It seems unlikely that the bank would follow a practice of allowing process to be served on one not authorized to receive it on behalf of the bank. Where the assistant cashier served was the one, above all others, designated to see that the bank’s interests were protected, in so far as they were affected by the service, certainly the bank regarded him as an officer.
We therefore hold that an assistant cashier of a bank, invested with the powers and duties with which Elliott was shown to have been clothed, is an officer of the bank upon whom service of process may be made.
On the date of the levy of the attachment, Republic Securities Corporation was indebted to defendant bank, as successor to Merchants’ National Trust & Savings Bank, in the sum of $50,489.16, on a demand note for which the bank held certain security. In the conversation between Brown, the vice president of the bank, and Wright, president of the Republic Securities Corporation, in which Wright was informed that an attachment had been levied, Brown told Wright that it would be necessary to debit the corporation’s checking account with the entire balance of the account, amounting to $8,086.16, and to apply the same on the note. Wright informed him that there were checks outstanding, and Brown stated that the bank would take care of the checks, and that the amount credited on the note would be immediately recredited to the checking account. Accordingly, on May 10, the account was debited, and the note credited in the amount of the said balance. Between May 10 and May 27 the account was kept open, the corporation’s checks were paid by the bank in the total sum of $1,568.21; the deposits in the meantime amounted to only $508.57, and between the two dates the corporation had at all times a debit balance which, on May 23, amounted to $1,419.31. On May 27 the account was credited with $8,086.16, and the note was debited in the same amount. Thereafter the corporation checked out this sum over a period of time; the bank received no part of it as payment on the note.
The foregoing facts are relied upon by defendant in support of its defense that it had a right of set-off which it exercised by applying the balance of the account on the note. The briefs in the case treat extensively of the right of set-off under the circumstances we have stated, one of the questions discussed being whether the bank held real estate security, and whether the right of set-off existed without foreclosure thereon. It is unnecessary to discuss these questions, for the reason that we have reached the conclusion that the bank did not avail itself of any right of set-off that may have existed. The process followed was but a shallow pretense of an application of the balance of the account as a payment on the note. Before any action was taken, the bank had agreed to recredit the account, and in the meantime to pay the checks of the corporation as apparent overdrafts. The bank, after recrediting the account, allowed it to be withdrawn by the corporation in the usual course of business. Whatever right of set-off the bank had it waived, and, if the waiver was effective as to the corporation, it was effective as to the attaching creditor, who, from the time of her attachment, stood in the place of the debtor corporation.
All of the foregoing facts are uncontroverted and the evidence thereof is free from doubt. It therefore follows that plaintiff by her attachment became entitled to receive the sum of $8,086.16, except in the event the bank exercised its prior right to apply the same on the indebtedness to the bank, and as that was not done and the right to do so was waived, plaintiff’s right became absolute. Levy of execution on the bank would have accomplished no purpose, would have added nothing to plaintiff’s right under the attachment, and was therefore unnecessary. The directed verdict in her favor was proper. We think interest was properly allowed on the claim, since plaintiff became entitled to receive the principal amount on the date of the judgment. Section 544, Code Civ. Proc. By the verdict and judgment, plaintiff was allowed interest from May 10, 1930; the prayer of the complaint was for interest only from July 14, 1930, the date of the judgment, and to that extent the judgment is excessive.
Defendant objected to the trial of the case before a jury, and made the point in the lower court, and urges it here, that a jury was waived by plaintiff’s failure to pay the jury fees ten days prior to the date set for trial. A sufficient answer to this point would seem to be that the jury had no part in determining the issues of fact tried. It was within the discretion of the court to relieve plaintiff from any default she may have suffered in failing to pay the jury fees on time; but, regardless of the regularity of the procedure which was followed, as to which no expression of opinion is necessary, no prejudice has resulted to appellant from the ruling made, since the judgment based upon a directed verdict is in reality the judgment of the court.
The judgment is modified by striking from the provision awarding plaintiff interest on the judgment the words "May 10, 1930," and by substituting the date "July 14, 1930," and, as modified, is affirmed, respondent to recover costs on appeal.
We concur: HOUSER, Acting P. J.; YORK, J.