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Leaf v. Mcgowan

FEBRUARY 19, 1957.

WALTER N. LEAF AND GERALDINE LEAF, PLAINTIFFS-APPELLEES,

v.

LUCILLE MCGOWAN, ET AL., DEFENDANTS. SEARS-COMMUNITY STATE BANK, GARNISHEE, AND ALBERT JASOUROWSKI, ADVERSE CLAIMANT, APPELLANT.



Appeal from the Circuit Court of Cook county; the Hon. JOHN E. PAVLIK, Judge, presiding. Judgment affirmed.

PRESIDING JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.

This is an appeal from a denial of petitioner Albert Jasourowski's motion to dismiss a garnishment proceeding in the Circuit Court of Cook County and from a judgment for plaintiffs for $963.38. We have not had the benefit of a reply brief by appellant Jasourowski to the arguments made and cases cited by plaintiffs in their brief.

Plaintiffs, who had secured a judgment for $13,000 against one Lucille McGowan, instituted a garnishment action against the Sears Community State Bank, as garnishee, to satisfy the judgment from money held in a joint savings account with the bank by Lucille McGowan and Jasourowski. The bank answered admitting an indebtedness of $2,732.42 to Lucille McGowan and suggesting that Jasourowski be permitted to intervene as an adverse claimant to this sum. Jasourowski intervened with a motion to dismiss alleging that money held in a joint account is not subject to garnishment, and, in the alternative, alleging that all the money in the joint account was actually his. The trial court denied Jasourowski's motion and found for plaintiffs.

The record discloses that the garnishee bank kept a joint savings account in the names of Jasourowski and Lucille K. Fay and that Lucille K. Fay and Lucille McGowan are the same person. The bank cashier, testifying on behalf of plaintiffs, identified nineteen deposit slips in the handwriting of Lucille McGowan totaling $963.38, and three in the handwriting of Albert Jasourowski totaling $196.29. All the deposit slips were subsequent to August 1, 1935. Those prior had been lost or destroyed. Plaintiff introduced the signature card that was signed by Jasourowski and Lucille K. Fay, which is the contract between the parties and the bank. The pertinent provision thereof reads as follows:

"The undersigned hereby agree to the By-laws, Rules and Regulations governing the Savings Department of Sears-Community State Bank, Chicago, and further agree that all deposits in this account, or any part thereof, or any interest or dividend thereon, may be paid to any one of the undersigned, whether the other or others be living or not, on the receipt or acquittance of any of the undersigned."

The account was originally opened by Lucille McGowan and Jasourowski's name was placed on the account subsequently. Also introduced into evidence were four ledger sheets of the bank showing the deposits and withdrawals from the account. These sheets indicate that the account was opened in July of 1931. Numerous deposits were made in the account with only one withdrawal in the sum of $666.75 in February of 1935. The decree in chancery in which a part of the relief granted was the judgment that forms the basis of this garnishment, makes extensive findings as to the fraud perpetrated by Lucille McGowan upon plaintiffs.

Jasourowski testified that all the money in the account was actually his; that on February 15, 1935, Lucille McGowan withdrew $666.75, which was all the money she had in the account; that any deposits she made thereafter in the account were on his behalf and that her name remained on the account for a matter of convenience. In the course of his cross-examination he admitted that he and Lucille McGowan had been living together; that at one time he claimed to be the natural father of her child.

Two questions are presented by this appeal. The first is whether or not a judgment creditor may prove a garnishable debt by establishing that the judgment debtor holds a bank account jointly with another. The second is whether or not the trial court was justified in disregarding Jasourowski's testimony that all the money in the account belonged to him.

As to Jasourowski's first contention, the law in this state setting forth the rights of a judgment creditor against a judgment debtor who holds a bank account jointly with another is not clear. See Brown v. First National Bank of Chicago, 271 Ill. App. 424 (1933); Comstock v. Morgan Park Trust and Savings Bank, 319 Ill. App. 253 (1943); Hackman v. Platt, 298 Ill. App. 626 (1939); Nudelman v. Stern, 315 Ill. App. 215 (1942). The same problem has arisen in a number of jurisdictions. In each instance the question has been settled according to concepts peculiar to the jurisdiction in which it has arisen. These concepts range in scope and application from specific statutory regulation over bank accounts to the most general common law principles governing contracts and property. Sitomer v. North River Savings Bank, 196 Misc. 870, 95 N.Y.S.2d 402 (1940); Fairfax v. Savings Bank of Baltimore, 175 Md. 136, 199 A. 872 (1938); Dover Trust Co. v. Brooks, 111 N.J. Eq. 40, 160 A. 890 (1930); Cullum v. Rice, 236 Mo. App. 1113, 162 S.W.2d 342 (1942); American Oil Co. v. Falconer, 136 Pa. Super. 598, 8 A.2d 418 (1939). The most recent decisions have allowed garnishment or attachment of the joint account. Republic of China v. Pong-Tsu Mow, 15 N.J. 139, 104 A.2d 322 (1954); United States v. Third National Bank and Trust Co., 111 F. Supp. 152 (D.C.M.D. Penn. 1953); Park Enterprises, Inc. v. Trach, 233 Minn. 467, 47 N.W.2d 194 (1951).

Our Supreme Court in the recent case of In re Estate of Schneider, 6 Ill.2d 180, clarifies the law relative to the rights of depositors as between themselves to a joint bank account. The rights of a creditor in garnishment were not involved. The court's reasoning, however, is helpful to us in deciding the issue before us. In discussing the nature of joint bank accounts the court said at pp. 183-4:

"The familiar joint bank account has had an uneasy career in the courts because the relationships which it contemplates do not fit readily in common-law categories. The four unities of the common-law joint tenancy, the notion of an undivided moiety in each joint tenant, and the difficulty of applying the common-law concept of joint tenancy to a fluctuating res have caused difficulties. Common-law doctrines governing gifts of personal property have contributed their share to the complex of legal problems stemming from joint bank accounts, for the common law required a complete relinquishment of ownership by the donor in order to achieve an effective gift, while the joint bank account contemplates power of withdrawal by both parties."

The court held parol evidence is admissible to establish the rights of parties to funds held by a bank under the terms of a so-called joint tenancy contract. As a result of this holding it is apparent a court has the right to consider the terms of the contract and allow extrinsic evidence as to the ownership of the funds in the account.

In applying this principle, we find that the Supreme Court of Minnesota in the case of Park Enterprises, Inc. v. Trach, 233 Minn. 467, had before it the same issue we are considering. In that case the plaintiff sued the defendant for rent and obtained a default judgment. Plaintiff sought to satisfy his judgment by garnisheeing a joint bank account to which the judgment debtor was a party. The other party to the joint account was permitted to intervene and alleged that a joint bank account was not subject to garnishment. The reasoning of the Minnesota Supreme Court in the construing of the so-called joint tenancy contract is very similar to that of our Supreme Court in the Schneider case, supra. The Minnesota Supreme Court said at pages 469, 470:

"This type of account is difficult, if not impossible, to classify under traditional categories of legal ownership. The account is distinguished from a joint tenancy because of the fact that it is joint and several, whereas in a joint tenancy there is joint ownership only. The survivorship feature of the account readily distinguishes it from a tenancy in common, and yet is not sufficient alone to make it a joint tenancy. . . . Since the type of ownership which the bank and its depositors have created by their contract defies classification under traditional concepts of property ownership, we are forced to treat this case as ...


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