Graves v. Neosho Falls Bank

131 P. 146, 89 Kan. 179, 1913 Kan. LEXIS 36

• Court: Supreme Court of Kansas
• Decided: April 12, 1913
• Docket: No. 17,434
• Status: Published

Opinion

Per Curiam:

It was not necessary to set out or attach a copy of the note spoken of as the action was not brought upon the note, but rather to recover money which appellant had received in payment of the note and had failed.to apply it to that purpose, with the result that appellee was compelled ■ to pay the debt again to the purchaser of the note. The action was properly brought against the receiver of the bank, and the judgment against appellant is supported by the testimony. Although the claim was once presented to the referee in a bankruptcy proceeding it was subsequently stricken out and was neither allowed nor paid. There was an attempt, too, by appellee to intervene in the action for an accounting between the partners of the Neosho Falls Bank. His motion for the allowance of the claim, however, was dismissed. There is a dispute as to whether it was dismissed with or without prejudice. The proof offered tended tó show, as the trial court must have held,-that it was dismissed without prejudice, and hence its presentation did not bar a recovery herein, nor was appellee concluded by the presentation of the claim in the bankruptcy court.

Other assignments of error were made but are found to be immaterial.

The judgment is affirmed.