
    DUNGAN v. JESKO.
    No. 16190
    Opinion Filed June 1, 1926.
    1. Appeal andl Error — Review—Lack of Record on Refusal [of New Trial.
    Where 'the record falls to show the overruling of a anotidn for new trial, theire is nothing presented for review in this court.
    2- Attachment — Rights to Dissolution ¡Waived by Consent to Sale toy Sheriff.
    Defendant is precluded from insisting on dissolution of attachment, where he has agreed that the attached chantéis may be sold by tbe sheriff and the proceeds retained by him or placed in a designated depository to a'Mde 'the final dispositidn of the case.
    8. Payment — Accepitancfa of Check Conditional.
    In the absence of an agreement to rhe contrary, the acceptance of a check in payment of a debt is conditional, depending upon tbe check being honored when presented.
    ('Syllabus toy Jarman, C.)
    Commissioners' Opinion, Division No. 2.
    Error from District Cohrt, Harper County; Arthur G. Sutton, Judge.
    Action toy Harry Jesko against W. H. Dun-gan and L. O. iStreat. Judgment for plaintiff, and defendant W. H. Dungan brings error.
    Affirmed.
    A. W. Walker and E. C. Batton, for plaintiff in error.
    Eovy.bourrow & Eoofbourrow, for defendant in error.
   Opinion by

JARMAN, O.

On September 29, 1923, W. H. Dungan bought 193 hogs from Harry Jesko for $959.20, and gave his check on the May State Bank for the amount of the purchase price, but before accepting the check, Jesko, hereinafter referred to as plaintiff, -in company with Dungan, hereinafter referred to as defendant, had the cashier of the First National Bank- of Lá-veme, Okla., where the transaction was had, to telephone the May State Bank of May, Okla., to ascertain whether the check would be honored upon being presented, and, upon receipt of advice from the May State Bank that the defendant had funds cfa deposit sufficient to -take care of the check, the plaintiff accepted said check and deposited the same in the'First National Bank of Enverne for collection. The First National Bank Uf Láveme forwarded tlie cheek in the regular course oí business to its correspondent, the Fourth National Bank o. "Wichita, Kan., for clearance*. During the meantime, the delivery of mail at May, Okla.. was practically suspended, wn account of floods and the check did not reach the May State Bank until about October 23. 1923, one day after said bank had been taken charge' of by the State Bank Commissioner, on account of insolvency, for liquidation purposes. The check was returned to the First National Bank of Laverne about November 1, 1928, and saiid bank notified the plaintiff of the conditions and that the check had been charged te his account. The plaintiff instituted this action to recover the amount o. the check from the* defendant, and caused an attachment t-o bd levied on certain hogs the defendant had in his possession. The defendant filed a motion to discharge the attachment, and as one of the grounds therefor alleged that the hogs attached belong.id to L. 0. Street. While tlie motion to discharge the attachment was pending, the plaintiff and the defendant executed and .filad a stipulation, agreeing for the sheriff to sell the hogs that were attached and to hdld the proceeds subjiict to the disposition of the controversy, and. pursuant thereto, the sheriff sold the attached property and retained the proceeds. The court' overruled the motii’n o. the defendant to discharge the attachment. Thereafter, W. T. Bergman and a number of others were permitted to intervene and file separate interpleas, in which they alleged that the'hoigs thait had been attached had been bought from them by the defendant, acting- ias the agent of L. O. Straet; that the defendant gave life personal checks to the interveners for the purchase price of said hogs, which cheeks had never been paid, and prayed for personal judgment against-. Street and the defendant Dungan for the amount of each of said checks and for a lien cn the proceeds, held by -the sheriff, derived from the sale of -the hogs. On motion of the in-terveners, L. O. Street was made a party defendant, and filed an answer .toi the several Imtcwpleas, denying, that the defendant. Dungan, bought the hogs as his agent, and disclaimed any interest in the hogs. At the trial of tlie cause, on motion of Street, the interveners were required to- elect whether they sought personal judgment against Street and Dungan, or tol have the -proceeds of the attached property applied in satisfaction of their demands. The intetvepers elected to have the proceeds of the attached property applied to the satisfaction of their demands, and this necessarily discharged and released Street from any lurtlier interest oil- liability in connection with the suit. The trial resulted in verdict and judgment in favor of the plaintiff against ;he defendant, Dun* gan, and the interveners for the amount of the purchase price of the hogs he sold to the defendant, and sustaining the attachment. frota which the de endant lias appealed. and the interveners have attempted to appeal by cross-petition in error.

The record discloses that tlie interveners in due time filed a motion for new trial, but the same was never acted upon, which w..s necessary in ord-r to vest this cdurt with jurisdiction to review the proceedings on behalf of -the interveners on appeal. The appeal as f-o the interveners. for the reasons stated, is dismissed.

The defendant contends: (1) That the trial ce'urt erred in refusing to discharge the attachment, and (.2) that rlie court erred in rendering judgment against, the defendant tor -the reason that the del"very by the defendant to the plaintiff of the chock in payment of the hogs, and tlie acceptance thereof by the plaintiff, after having tlie same O. K.’d by the Bank of May, constituted an assignment of the funds repres"sited by the check tel the plaintiff, and that the funds to thait amount on, deposit in tlie May 'State Bank at the time of its iailure and at the time it was taken over by the Bank Commissioner, was tlie property of the plaintiff; and (3) that (he plaintiff lost the amount of the check on account of his laches in presenting the check for payment.

The defendant does not cite a single authority to support either of his assignments of error, and, under the rule announced in the case of Eagle Loan & Investment Co. v. Starks et al., 116 Okla. 151, 243 Pac. 725, we would be warranted in not considering the assignments of error and affirming the judgment of the trial court. We will dispose of the case, however, on its merits.

The plaintiff’s grefund for attachment com,sis within the 11th subdivision of section 340, 0. S. 1921, providing that the plaintiff at or after the commencement of a civil action may have an attachment against I he property of the defendant when the debtor has failed tci pay the price of an article delivered, which by contract he was bound to pay for on delivery. The defendant contends, however, that the attachment should not hiave bean sustained for the reason that he was ndt. the owner of the property, but that the same was owned by L- O. Street. Mr. Street, in his answer to the interpleas of the interveners, denied ownership of the property and disclaimed any interest therein. After the property was attached, the same was sold by the sheriff on a stipulation entered imo and signed by the defendant, in which he agreed that the property be said and the proceeds be held by the sheriff to abide the result of the suit. This precludes the defendant from denying the ownership of the property under the rule announced iu the case of Collier v. Gannon, 40 Okla. 275. 137 Pac. 1179, ia® follows:

Note — See under (1) 4 G. J. p. 96 §1699. (2) 6 O. J. p. 433 §1004; 2 it. C. L. p. 876. (3) 30 Oye. p.1208.

“An agreement, after seizure of chattels attached, that the sheriff shall sell summarily and retain the proceeds, or place them in a designated depository to abide the final judgment in said proceeding, precludes the defendant from insisting on a dissolution of the writ.”

As to the contention of the defendant, that the acceptance of the check by the plaintiff constituted an assignment to the plaintiff of the funds represented thereby, it is sufficient to say there is no evidence to show that the check was accepted unconditionally by the plaintiff as absolute payment and in satisfaction olf the purchase price of the hogs. In the absence of an agreement to the contrary, the acceptance of a cheek in payment of debt is conditional, depending npon the check being" honored when presented. Mutual Life Ins. Co. v. Chattanooga Savings Bank, 47 Okla. 748. 150 Pac. 190; U. S. Nat. Bank v. Shupak, 54 Mont. 542, 172 Pac. 324. There biting no agreement to the contrary, the check in question was accepted on the condition that the same should be paid when presented.

The remaining question for determination is, whether the i>laintiff was guilty c£ such laches in presenting the check for payment as to defeat his recovery. The record discloses that the check was deposited m the First National Bank of Laverne on the day it was given; that it was then forwarded by the bank to its correspoindent a+ Wichita, Kan., and in due course transmitted to the May State Bank, on which it was drawn, for collection. The plaintiff was in no way r/jsponsible for the delay of the check by reasdn of floods whic-b intervened, and he exercised the diligence of «i reasonably prudent man in the handling of the check for collection, and is not responsible for the check not havingl been paid.

For the reasons given, the judgment wf the trial court is affirmed.

By the Court: It is so ordered.  