Conway v. Kenney

• Decision Date: 03 October 1930
• Parties: CONWAY et al. v. KENNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 19

172 N.E. 888

CONWAY et al.

v.KENNEY.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 3, 1930.

Appeal from Appellate Division of District Court; Thomas F. Gallagher, Judge.

Action of tort by Earle E. Conway and others against Charles H. Kenney. On report from the district court after finding for plaintiff, the report was dismissed by the Appellate Division, and defendants appeal.

Affirmed.

S. M. Salny, of Fitchburg, for appellants.

J. G. Annala, of Fitchburg, for appellee.

CROSBY, J.

This is an action of tort for the conversion of a piano player and piano bench. The plaintiff named in the writ, when originally issued, was the Conway Financing Company. The defendant filed a demurrer and a motion to dismiss. The grounds alleged in the demurrer were (1) that the court had no jurisdiction of the plaintiff; (2) that the plaintiff was not entitled to and has no power to bring suit; (3) that it does not appear that the plaintiff has a residence, domicil or place of business anywhere; (4) that the declaration did not set forth a cause of action; and (5) that the various counts were repetitions of each other. The grounds alleged in the motion to dismiss were the same as the first three grounds of demurrer above stated. The plaintiff filed a motion to substitute as parties plaintiff the present plaintiffs. At the hearing on the demurrer and motions, the judge allowed the plaintiff's motion to substitute and overruled the defendant's demurrer and motion to dismiss. The plaintiff waived the second count of the declaration. To the amended writ and declaration the defendant on December 20, 1928, filed a petition of interpleader. The plaintiffs filed a motion that the petition of interpleader be dismissed. On January 23, 1929, the judge allowed the petition, and on the same day overruled the plaintiffs' motion to dismiss. On March 29, 1929, the judge vacated the order granting the interpleader as he was satisfied that his previous order was erroneous. The defendant requested that the action of the judge in reversing his previous order be reported, and thereafter filed an answer pleading a general denial and other defences, but not waiving the claim that he was entitled to maintain the petition of interpleader. The judge, after hearing the case on the merits, found for the plaintiff.

The right of a defendant to maintain a petition of interpleader is governed by G. L. c. 231, § 40. ‘The statute, authorizing this summary proceeding in actions at law, does not alter the settled doctrines applicable to bills of interpleader. * * * Interpleader lies only when the party is exposed to several actions for the same demand, while he is ready and willing to satisfy that demand in favor of the claimant who establishes his right thereto, and he himself claims no personal interest in the subject-matter of the litigation. Between the claimants the he should stand indifferent. If he denies and contests the right of one of them to share in the money due, or if he has incurred a personal liability to either of them, independent of the question between the claimants themselves, he is not entitled to relief by way of interpleader.’ Gonia v. O'Brion, 223 Mass. 177-179, 111 N. E. 787, 788.

It is plain that the defendant is not within the law above stated. He does not stand indifferent between the parties. The action is...