Opinion
No. 19423
Opinion Filed April 29, 1930. Rehearing Denied July 8, 1930.
(Syllabus.)
Syllabus Adopted.
The holding in case No. 19424, entitled New Amsterdam Casualty Company v. First National Bank of Oklahoma City et al., 144 Okla. 180, 289 P. 749, this day decided by this court, is decisive of all issues herein, and reference is here made to the opinion and syllabus in said cause.
Commissioners' Opinion, Division No. 1.
Error from District Court, Carter County; John B. Ogden, Judge.
Action by the New Amsterdam Casualty Company against First National Bank, Oklahoma City, and American National Bank, Ardmore, Okla., for $6,461.05 damages. General demurrer of First National Bank to plaintiff's petition sustained by trial court. Plaintiff stood on its petition, and cause dismissed as to demurrant. Plaintiff appeals. Affirmed.
Nowlin, Speilman Thomas, for plaintiff in error.
Wilson Wilson, for defendants in error.
The parties to this appeal occupy the same relative positions as they occupied in the trial court, and they will be herein referred to as plaintiff and defendants.
This is a companion case to case No. 19424, entitled New Amsterdam Casualty Company, a Corporation, Plaintiff, v. First National Bank of Oklahoma City, Okla., a Banking Corporation, and Exchange National Bank of Ardmore, Okla., a Banking Corporation, 144 Okla. 180, 289 P. 749. The parties are identical except that, in case No. 19424, Exchange National Bank of Ardmore was codefendant with First National Bank of Oklahoma City, Okla., whereas, in the case at bar, American National Bank of Ardmore is a codefendant with First National Bank of Oklahoma City, Okla. The pleadings in the two cases were substantially identical, subject to the following explanation: In cause No. 19424 the plaintiff, claiming to be subrogated to the rights of Carter county, sued defendants therein upon the allegation that defendants aided and participated in the embezzlement by the county treasurer of Carter county of $75,000 represented by the larger of two cashier's checks issued about April 13, 1925, by First National Bank of Oklahoma City to S.F. Haynie, county treasurer of said county and state; alleging that said county treasurer negotiated said check to Exchange National Bank of Ardmore, Okla., in exchange for a cashier's check of the latter bank payable to one E.G. Lewis, whereby the funds of said county represented by said check were lost to said county; whereas in the suit at bar the plaintiff seeks to recover of defendants herein $6,461.05, the amount of the second and smaller cashier's check, alleging that said county treasurer indorsed said check to, and collected the proceeds thereof from, the American National Bank of Ardmore, Okla., and misappropriated the funds to the loss of Carter county.
The plaintiff in each of the cases alleged that it was the surety on the bond of said county treasurer, and that following the loss of the funds represented by the two cashiers' checks, the county had brought suit and recovered judgment against such defaulting county treasurer and such surety in the district, court of Carter county, whereupon said surety company satisfied said judgments, and had become thereby subrogated to the rights of the county in the premises as against the respective defendants because of the alleged participation in the misappropriation of said funds by said county treasurer.
The trial court sustained the general demurrer of First National Bank of Oklahoma City, Okla., to the petition of plaintiff in each of causes Nos. 19424 and 19423, and plaintiff, having elected to stand upon said petitions and the causes being dismissed by the court as to said demurrant, appealed.
By order of October 10, 1928, the Supreme Court authorized said causes to be consolidated for the purpose of briefing, since the issues are practically identical, except as to the amount demanded, and except as to one of the defendants as indicated above.
Having found that the judgment of the trial court in sustaining a demurrer to the petition in cause No. 19424 was proper, and it appearing that the principles of law announced therein are controlling herein, for the reasons given and upon the authorities set out in the opinion in 19424, we hold that the judgment of the trial court should be and the same is affirmed.
TEEHEE, REID, HERR, and FOSTER, Commissioners, concur. HEFNER, J., disqualified and not participating.
By the Court: it is so ordered.