
    FIRST NAT. BANK OF CLAREMORE v. STALLINGS et al.
    No. 9181
    Opinion Filed Nov. 19, 1918.
    Rehearing Denied Jan. 21, 1919.
    (177 Pac. 373.)
    Bills and Notes — Carriers—Draft with Bill of Lading Attached — Title to Goods— Title to Proceeds.
    Where the drawer of a sight draft, with bill of lading attached, indorses the same and delivers it to the bank in regular course of business and receives credit for the amount thereof, which is checked out the following day, such transaction operates to pass the title to the property called for by (he bill of lading to the bank, and where such bank forwards the draft to its correspondent at the place where the drawee resi les for collection, and the same is presented and paid, the proceeds of the draft belong to the forwarding bank.
    (Sy Tabus by Galbraith, C.)
    Error from District Court, Pittsburg County; R. W. I-liggins, Judge.
    Action by Thomas J. Stallings and Davis Stallings, doing business under the name of Stalling's & Son, against the Claremore Mill & Elevator Company, in which the First National Bank of Claremore intervened. Judgment for plaintiffs against defendant and'in-tervener, and the intervener brings .error.
    Reversed and remanded, with directions .to enter judgment for intervener.
    Harris, Howard & Nowlin and H. Tom Right, for plaintiff in error.'
    W. J. Hulsey, for defendants in error,
   Opinion by

GALBRAITH, C.

Stallings * Son, merchants at I-Iartshone, Pittsburg county, Okla., commenced an action in the superior court of Pittsburg county ' against the Claremore Mill & Elevator Company,, a domestic-corporation with,principal office at Claremore, in Rogers county, Okla.,- alleging that the defendant -was indebted to tbern in damages by reason of ‘the breach of contract for the shipment of mill products in the sum of $425, alleging that the defendant . was a nonresident of the county, and filed an áffidavit of garnishment against the First National Bank of Hartshorne, alleging that is rvas the’ custodian of funds belonging to the defendant. Summons was issued for the defendant and service thereof made in Rogers county. The First National Bank of .Claremore intervened in the action and alleged that it was the owner of the funds garnished and that same did not belong to the defendant.

Issue was joined, and the cause was transferred to the district court, and, a jury being waived, the cause was submitted to the court on two questions:

First. Whether or not the money held by the garnishee belonged to the intervener or to the defendant at the time of the service of garnishment on September 16, 1913.

Second. If it was found that the money belonged to the intervener, whether or not the court had jurisdiction in the ease under the pleadings filed.

At the close of the evidence and the argument, the court, without making any specific findings of fact, found that the intervener should take nothing by reason of its plea of intervention, and in favor of the plaintiff and against the defendant, and directed that the funds held by the garnishment be paid into court. • '

The intervener appealed and urges a reversal of the judgment on the ground that the court erred as a matter of law in failing to find that the funds in controversy belonged to the intervener. There is no controversy as to the law between ¡the counsel in this ease, but there is a slight disagreement as to the facts. The defendant in error contends that, this being a law ease, the facts were submitted to the court for determination, and that the finding, being supported by the evidence, -is conclusive and not subject to review; that, the court having" found that the money in controversy belongs to the defendant and. not to the intervener, that finding is final.

It is contended on behalf of the plaintiff in error that, as a matter of fact, the court did not so find, and that, if such finding w.as actually made, it is not supported by the evidence and should for that reason be set, aside. It does not- appear, from the record, other-than by inference, that the court made any finding on the questipn- of fact submit; ted-to it. namely, as to the ownership of the money in controversy.

The facts, disclosed by the evidence were, in brief, as follows:

That the Olareniore Mill & Elevator Company, "the "defendant "below, was "a customer of "the First National Bank "of Ckiremore, the intervener; thát ón 'the 8tli .day of October, 1913, the mill company presented to the bank a draft for $420 drawn on Stallings & Son at Hartshorne, to which was attached a bill of lading issued by the ráilroad company for the shipment of certain mill products from Claremore to Hartshorne for delivery to Stallings & Son, drawees of the draft; that the bank gave the mill company credit on its account for the face of the draft, and on the day following the mill company checked the money out of the bank rind had an overdraft amounting to several hundred dollars, and that its account from that date to the 16th day of October, when the garnishment summons was served on the Hartshorne Bank, was overdrawn; that the bank forwarded the draft to the First National Bank of Hartshorne for collection and remittance to it; that the draft was paid by the payees when presented, but before the proceeds thereof were remitted to the forwarding-bank at Claremore, the garnishment summons was served upon the bank at Harts-horne ; that the money in controversy ivas the proceeds of "the draft so drawn and forwarded.

It is contended on behalf of the plaintiff in error that, under these facts, the inter-vener as a matter of law was the purchaser of said draft in .due course, and. that the title to the property described In the bill of lading passed to it, and that the proceéds of the draft belonged to it; that the judgment of the trial court is not" supported by the evidence and is contrary to law and "should be vacated and judgment directed to be entered in its favor.

It is admitted in the brief'of the defendant in error that.the law applicable arid controlling was announced by the Supreme Court of the Territory in Morrison & Co. v. Farmers’ & Merchants’ Bank of Los Angeles, 9 Okla. 697, 60 Pac. 273, and was followed and affirmed by this court in Forbes v. First National Bank of Enid, 21 Okla. 206, 95 Pac. 785; Wood v. Stickle et al., 36 Okla. 592, 128 Pac. 1082; State National Bank of Oklahoma City v. Wood, 43 Okla. 251, 142 Pac. 1002; Marsh Mill & Grain Co. v. Guaranty State Bank of Ardmore, 69 Okla. 222, 171 Pac. 1122, L. R. A. 1918D, 704.

Under the law as. announced in these decisions, the. judgment of the .trial court cannot be sustained.

An examination of the facts convinc.es us that the finding of the trial court, if in fact he made such finding, finds no support in the evidence, and a consideration of .the law applicable constrains us to hold that "the money in controversy belonged to-the First National Bank of Claremore, and tkat tke -judgment of tke trial court to tke contrary was error. We tkerefore conclude tkat tke judgment appealed -from skould be vacated, and tke cause remanded to tke trial court, witk directions to enter judgment in favor of tke intervener for tke funds in controversy and for its costs.

By tke Court: It is so ordered.  