Atkinson v. Carter

• Decision Date: 12 May 1903
• Citation: 101 Mo. App. 477,74 S.W. 502
• Parties: ATKINSON v. CARTER.
• Court: Missouri Court of Appeals

74 S.W. 502

101 Mo. App. 477

ATKINSON v. CARTER.

Court of Appeals at St. Louis, Missouri.

May 12, 1903.

INTERPLEADER — MAKING INTERPLEADER BY ANSWER—SUFFICIENCY OF ALLEGATIONS —DISMISSAL AND NONSUIT—COUNTERCLAIM.

1. An interpleader may be made by answer.

2. In an action on a note, defendant's answer alleged that plaintiff and defendant and a third person were defendants in an equity suit by which it was sought to subject the note in suit, or its proceeds, to judgments obtained against the third person, and that such suit was then pending, and that defendant owed the note and was anxious to pay it, and that he had no interest in the controversy between the other parties. Held, that such allegations amounted to a good interplea.

3. Rev. St. 1899, § 639, provides that a plaintiff may dismiss a suit or take a nonsuit before final submission. Rev. St. 1889, § 8172, provides that, notwithstanding plaintiff may take a nonsuit or dismiss his suit before final submission, defendant's counterclaim or set-off shall be proceeded with to final judgment. Held, that notwithstanding the defendant, in an action on a note, set up by answer an interplea, plaintiff's motion to dismiss his suit before final submission should have been granted.

Appeal from Circuit Court, Audrain County; Elliott M. Hughes, Judge.

Action by William F. Atkinson against Alex. Carter, Jr. From a judgment for defendant, plaintiff appeals. Reversed.

The suit is on the following promissory note: "$800. Mexico, Mo., December 24, 1900. On December 25th, 1901, I promise to pay to William F. Atkinson eight hundred dollars, for value received, with interest thereon at the rate of eight per cent. per annum from maturity, and if the interest is not paid annually to become as principal and bear the same rate of interest. This note is not negotiable and is given for the rent of 540 acres of land more or less, located in sections 2, 10 and 11, township 52, range 8 west, Audrain county, Missouri, for a term beginning March 1st, 1901, and ending March 1st, 1902. Alex. Carter, Jr."

On June 12, 1902, defendant filed the following answer to the petition: "Now comes the defendant herein, and, for his amended answer to plaintiff's petition and for his interplea, admits the execution of the note sued upon, and admits that the same is due, and says he is ready and willing to pay the same, and now offers to pay the same into court, to be held there to abide the rights of certain parties hereinafter named, whom defendant prays may be made parties in this action. Defendant says that heretofore, to wit, on the 16th day of July, 1901, John B. Gregory and Mary B. Beagles, as plaintiffs, began their action in the circuit court of Audrain county, Missouri, in the nature of a creditors' bill, and against this plaintiff and this defendant and other persons therein named, including James M. Beagles, wherein it is set forth and claimed in their petition that they are entitled to have the proceeds of said note, and are entitled to have said note herein sued on, subject to the payment of certain judgments in said petition described, to wit, one in favor of John B. Gregory for the sum of four hundred and thirty-eight dollars ($438), and ten dollars ($10) in costs, and one judgment in favor of Mary B. Beagles for alimony, rendered at the June term, 1901, for the sum of ten dollars ($10) per month, and eighty-five dollars ($85) in costs, making at this time the sum of one hundred and eighty-five dollars ($185). And it is alleged in said petition and claimed by said John B. Gregory and Mary B. Beagles that the said note herein sued upon is the property of said James M. Beagles, and that said plaintiff herein is holding the same and has taken the same in his name as trustee for the benefit of said James M. Beagles. And it is further prayed in said petition in said action that a receiver be appointed to take charge of said note or its proceeds, in order that the same may be used to pay the judgments of said John B. Gregory and Mary B. Beagles." Said cause was tried in the Audrain county circuit court, and all of said plaintiffs and the said defendants appeared thereto, and judgment was rendered in favor of said defendants at the January term, 1902, and thereupon said plaintiffs perfected their appeal to the Supreme Court of Missouri, where said action is now pending for trial. Defendant further says that at the beginning of said action said note was not due, and did not become due until the 26th day of December, 1901, and at the time said note became due, and ever afterwards, said note was held by the Mexico Savings Bank as collateral security, and therefore this defendant was unable to pay the same into court in said action. "Defendant further alleges that he is not interested in said action, and has ever since said note became due been ready and willing to pay the same, but has been advised that he cannot do so with safety to himself so long as said plaintiffs in said creditors' bill claim the proceeds of said note, and said note, as is in said bill set forth and claimed. Wherefore this defendant comes now and files this answer in the nature of an interplea, and prays that this court will make an order making said John B. Gregory and Mary B. Beagles, and, if necessary, James M. Beagles, parties hereto, that they may come into court and assert their claim to the proceeds of this note, and interplead for the same. And further prays the court to be allowed to pay the amount due on said note into court, to abide the rights of the parties in said action in the nature of a creditors' bill, and for all other relief proper under the facts aforesaid, and particularly that plaintiff be enjoined from further proceeding with this action. And further prays that he be allowed the costs and expenses of filing and maintaining this interplea." On June 4, 1902, the court gave plaintiff leave to plead to the answer on or before the 16th of the same month. Plaintiff failed to plead within the time granted, but on June 26, 1902, filed the following motion, "Now comes the plaintiff, and files his motion, and asks the court to permit him to dismiss this action, and hereby asks that this action be dismissed voluntarily by plaintiff at his costs," which motion the court overruled, whereupon the plaintiff offered to file a reply to the answer, wherein he denied generally each and every allegation therein. The court refused to permit the same to be filed, because the same was out of time, and tendered issues on facts in a cause then on trial, which facts were before confessed by failure to reply within the time given, and because the failure to reply before was not the result of oversight or inadvertence of counsel, to which action of the court in refusing to permit said reply to be filed the plaintiff excepted, and saved his exceptions. The court thereupon sustained the answer and interplea, and rendered judgment that the parties do interplead for the fund paid in court. On motion of defendant, after hearing the evidence, the court allowed defendant $75 as attorney's fees and expenses of filing his bill of interpleader, and entered the following judgment: "Now, on this 26th day of June, this cause coming on to be heard, and defendant filed his motion to dismiss the cause, which is by the court seen, duly understood, and is overruled. The court doth sustain the interplea, and render judgment for the interpleader, defendant; and it is ordered that summons issue for ...