Caston v. Turner

• Decision Date: 08 March 1909
• Docket Number: 13,406
• Citation: 95 Miss. 303,48 So. 721
• Court: Mississippi Supreme Court
• Parties: WILLIAM L. CASTON, ADMINISTRATOR, v. HORACE G. TURNER

48 So. 721

95 Miss. 303

WILLIAM L. CASTON, ADMINISTRATOR, v. HORACE G. TURNER

No. 13,406

Supreme Court of Mississippi

March 8, 1909

FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.

Turner appellee, was plaintiff in the court below; the McComb City Mercantile company was the original defendant there. The plaintiff claimed that rent was due him from a tenant to whom he had leased a farm, that the Mercantile Company, original defendant, had obtained the possession of agricultural products raised by the tenant on the leased premises, upon which plaintiff had a statutory lien (Code 1906, § 2832), and had converted the same to its use, etc.

The Mercantile Co., original defendants, interpleaded Caston administrator, appellant, under Code 1906, § 772, paying into court the proceeds of the agricultural products, and was discharged from the suit.

The interpleaded party propounded his claim to the funds in writing as shown in the opinion of the court and also pleaded a set-off, averring that the plaintiff was due him, as administrator of his intestate's estate, a sum of money equal to plaintiffs demand of like character as the debt demanded in the declaration. The intestate had leased a farm and the plaintiff had received from the tenant agricultural products raised thereon and converted the same to his use leaving the rent unpaid.

The plaintiff demurred to both pleas, and the court below sustained the demurrers; judgment final was rendered in plaintiff's favor and Caston, administrator, appealed to the supreme court.

Code 1906, § 772, under which procedure was had, is as fol lows: "Upon affidavit of a defendant before plea filed in any action upon contract, or for the recovery of personal property, that a third party, without collusion with him, has a claim to the subject of the action, and that he is ready to pay or dispose of the same as the court may direct, the court may make an order for the safe-keeping or payment, or deposit in court, or delivery of the subject-matter of the action to such person as it may direct, and an order requiring such third party to be summoned to appear in a reasonable time and maintain or relinquish his claim against the defendant. If such third party, being duly summoned, or in case he be a nonresident of or absent from this state, if publication of summons shall have been made for him as prescribed by law for nonresident or absent defendants in chancery, shall fail to appear, the court may declare him barred of all claim in respect to the subject of the action against the defendant therein; but if such third party appear, he shall be allowed to make himself defendant in the action at law instead of the original defendant, who shall be discharged from all liability to either of the other parties, in respect to the subject of the action upon his compliance with the order of the court for the payment, deposit or delivery thereof. If the claim of such third party extend to only a part of the subject-matter of the action, similar proceedings...