Fulton, Supt. of Bks. v. Campbell

185 N.E. 883, 44 Ohio App. 376, 13 Ohio Law. Abs. 468, 1932 Ohio App. LEXIS 265

• Court: Ohio Court of Appeals
• Decided: December 19, 1932
• Docket: 2722, 2723 & 2724
• Status: Published

Opinions

These three cases were argued and submitted together. In the court of common pleas each case followed a similar course. After a demurrer in each case was overruled, an answer was filed, and then the plaintiff filed a motion for a judgment on the pleadings. On hearing, this motion was sustained and judgment entered in favor of the plaintiff.

In the Campbell case it appears that Campbell left with the bank a check received from the government for the amount of a loan on his adjusted service certificate, with instructions to deposit it in a commercial account in his name. Thereafter he made certain withdrawals and also made deposits in said account, and he seeks to have the balance, less dividends, declared a preference.

In the Samiec case, Samiec received a check from the government for the amount of a loan on his adjusted service certificate, and opened a savings account by depositing the check in the bank in the name of himself and wife jointly. There were thereafter no withdrawals or additions by way of deposit, so the fund remains in the identical form in which it was created, and Samiec desires to have the claim declared a preference for the full amount deposited, less the dividends paid.

In the Buckenmyer case it appears from the petition that Buckenmyer had a commercial account in the bank in his own name, in which was deposited $7.11. He received a check representing a loan on his adjusted service certificate, and deposited it in the same account. No other deposits were made in that account, but there were withdrawals from said account from time to time, and Buckenmyer seeks to have his claim declared a preferred one for the amount of the government loan less the $7.11 on deposit and less withdrawals and dividends received.

These deposits were all in the Security-Home Trust Company, and the dividends referred to are those which have been paid during the time the bank has been in liquidation.

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, ante, 373.

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.

Judgments reversed and causes remanded.

LLOYD, RICHARDS and WILLIAMS, JJ., concur.

ON APPLICATIONS FOR REHEARINGS AND MOTIONS TO CERTIFY.