Buerger v. Costello

Decision Date05 December 1949
Docket NumberNo. 21262,21262
PartiesBUERGER v. COSTELLO et al.
CourtMissouri Court of Appeals

C. W. Prince, Kansas City, Wm. Dennis Bush, Kansas City, Guy W. Runnion, Kansas City, for appellant.

Marcy K. Brown, Jr., Kansas City, for respondents.

SPERRY, Commissioner.

This is an appeal by defendant, Zillah Goodwin, administratrix of Harrie O. Goodwin, deceased, from an order requiring her and defendants, Maxwell and Marie Costello, to interplead.

Grace C. Dodd owned an undivided one-half interest in certain real estate and Maxwell and Marie Costello owned the other undivided one-half interest therein, by the entirety. Mrs. Dodds, without the knowledge or consent of the Costellos, leased said real estate to Harrie O. Goodwin, deceased, defendant Zillah Goodwin being his administratrix. Goodwin v. Costello, Mo.App., 212 S.W.2d 804. Goodwin subleased to plaintiff a filling station located thereon, as described in plaintiff's petition. In August, 1948, the Costellos, defendants herein, demanded payment to them of rents accruing the future, demanded an accounting and payment to them of all rents previously paid to Goodwin, and threatened suit therefor. Two suits in ejectment are now pending against Goodwin, in the Circuit Court of Jackson County, wherein Mrs. Dodds and the Costellos seek recovery of possession of the property.

Plaintiff, respondent, contends that an order sustaining a bill of interpleader is not appealable. This contention is without merit. Hyer v. Baker, Mo.Sup., 130 S.W.2d 516, loc. cit. 517; Lafayette-South Side Bank & Trust Company v. Siefert, 223 Mo.App. 431, 18 S.W.2d 572, loc. cit. 574; Moore v. John J. Dowling Realty Company, Mo.App., 166 S.W.2d 238, loc. cit. 242.

Defendant contends that a tenant may not implead his landlord in an interpleader action involving rent money. This court so held, in McGinn v. Interstate Nat. Bank, 178 Mo.App. 347, 166 S.W. 345, 346, and said: 'And the reason why such a suit cannot be maintained is because, in the very nature of things, there is an independent personal liability with respect to the subject-matter, of the tenant to his landlord, which the maintenance of the suit would destroy.' There are other decisions and various authorities to the same effect; but they are no longer controlling.

Since the rendition of that decision, and others of a like character, we have adopted a new Civil Code. Section 18 thereof, Section 847.18, Mo.R.S.A. provides, in part as follows: 'Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.' We have heretofore held that the statute broadens and extends the scope of bills of interpleader and bills in the nature of interpleader; and that the above quoted language now constitutes virtually the sole...

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4 cases
  • General American Life Ins. Co. v. Wiest, 39140
    • United States
    • Missouri Court of Appeals
    • 4 April 1978
    ...the party seeking interpleader against double or multiple recovery with respect to a single liability, e. g., Buerger v. Costello, 240 Mo.App. 1194, 226 S.W.2d 610 (1949), especially where the party is a disinterested stakeholder and seeks the protection of interpleader against the threat o......
  • Plaza Exp. Co. v. Galloway
    • United States
    • Missouri Supreme Court
    • 13 June 1955
    ...and enlarged by Section 507.060. Heinrich v. South Side Nat. Bank in St. Louis, 363 Mo. 220, 250 S.W.2d 345, 348; Buerger v. Costello, 240 Mo.App. 1194, 226 S.W.2d 610, 611; Standard Surety & Casualty Co. v. Baker, 8 Cir., 105 F.2d 578; 1 Carr, Missouri Civil Procedure, 162, Sec. 67. We hol......
  • Johnson v. Fire Ass'n of Philadelphia
    • United States
    • Missouri Court of Appeals
    • 5 December 1949
  • Clay County State Bank v. Simrall, 21827
    • United States
    • Missouri Court of Appeals
    • 1 June 1953
    ...entitled to seek relief from a double vexation on account of its single liability. 30 Am.Jur. page 215, par. 3; Buerger v. Costello, 240 Mo.App. 1194, 226 S.W.2d 610, 611; Section 507.060 RSMo 1949, V.A.M.S., Note It is not necessary to discuss what the liability of plaintiff would have bee......

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