First Nat. Bank v. Burch, 1 Div. 40.

• Decision Date: 11 May 1939
• Docket Number: 1 Div. 40.
• Parties: FIRST NAT. BANK OF MOBILE ET AL. v. BURCH.
• Court: Alabama Supreme Court

188 So. 859

237 Ala. 680

FIRST NAT. BANK OF MOBILE ET AL. v. BURCH.

1 Div. 40.

Supreme Court of Alabama

May 11, 1939

Rehearing Denied May 25, 1939.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Bill of interpleader by Warren F. Burch against the First National Bank of Mobile and the Merchants National Bank of Mobile as administrators of the estate of Margaret Cox, deceased, and Clara Moskowitz. From a decree for respondent (claimant) Moskowitz, respondents (claimants) First National Bank and Merchants National Bank, as administrators, appeal.

Affirmed.

McCorvey McLeod, Turner & Rogers, of Mobile, for appellants.

Harry T. Smith & Caffey, of Mobile, for appellee.

THOMAS Justice.

The bill was for interpleader among rival claimants for moneys seized by the Chief of Police of Mobile under legal process.

It is alleged by complainant Burch that the appellants (the banks) as administrators of the estate of Margaret Cox, deceased and Clara Moskowitz, one of the respondents, claimed money that Clara Moskowitz alleged complainant took from her unlawfully, and that it "was not concealed except that it was put in a trunk in a closet at (her) home;" that of such sum, $4,458.77 was paid out by complainant on the order of the Circuit Court of Mobile, leaving a balance with complainant of $973.38, which was claimed by Mrs. Moskowitz as her own and the administrators of the Cox estate likewise claimed such amount.

It is averred by Mrs. Moskowitz that on the 23rd day of October 1935, one Rosa Lartigue sued out a writ of garnishment on a judgment which she had recovered against the said Clara Moskowitz, and caused garnishment to issue thereon against the said Burch, who as garnishee filed his answer, admitting the possession of the sum of $5,040; that thereafter a claim was filed by the First National Bank of Mobile, and The Merchants National Bank of Mobile, as Administrators of the Estate of Margaret Cox, deceased, claiming the amount in his hands; that an issue was made up between "said claimants and Rosa Lartigue" as to whether said monies belonged to said Clara Moskowitz and subject to garnishment, or whether they belonged to said appellants as Administrators of the Estate of Margaret Cox; and that issue was decided in favor of Rosa Lartigue and on appeal to the Supreme Court, was reversed. First Nat. Bank v. Lartigue, 233 Ala. 670, 173 So. 21; that thereafter, on March 31, 1937, "without her knowledge or consent" an order was entered in said claim suit whereby the claimants (appellants) consented that plaintiff in the claim suit (Rosa Lartigue) "have judgment for $4,018.32 representing the principal and interest of plaintiff's claim, and for the further sum of $440.45, representing the costs accrued in connection with this proceeding." Petitioner Moskowitz further alleges that "she was not a party to said claim suit, and knew nothing about any hearing of this cause at the time said order was entered; that the case was not set on the docket by the Clerk; and she was given no notice of any such hearing and did not participate in any manner therein, either in person or by attorney;" that the appellants having agreed to the entry of said judgment, and the court having acted upon said agreement, that appellants are now estopped from claiming the balance or remainder of said sum of $5,040 which has been paid into court, and which is the subject of this present controversy.

Copies of the answer of the garnishee and the judgment of the court therein are attached to the respondent Mrs. Clara Moskowitz' answer as exhibits in aid of her pleading. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90.

The respondents (appellants) appeared and answered the bill of interpleader, admitting all material allegations thereof, setting up that the money was formerly in the hands of the complainant, and now in the registry of this court, amounting to $973.38, and claiming it as the property of the Estate of Margaret Cox, deceased; alleged that prior to the time said money was found in the home of the respondent Clara Moskowitz, she stated to the officers executing the search warrant that she had no money in the house, and that even after the money was found she stated that the money was sent her by a rich uncle residing in Texas, and that upon being asked if she knew the signature of said uncle, replied, "Yes." and then stated, "No, he didn't send it to me. That (it) is money I have been saving;" and further alleged that Clara Moskowitz was duly served with notice of the issuance of the garnishment to Burch, she failed to enter any appearance in the claim suit, did not interpose any claim to any part of said funds, and appellants (respondents) further allege "that there was no occasion to give to the said Clara Moskowitz any further notice or advice as to any further proceedings in said cause and that the said Clara Moskowitz, having had notice of the suing out of said garnishment, and having failed to enter any appearance therein or claim said funds, was herself solely responsible for her lack of knowledge of any subsequent action taken in said cause." These respondents admit that said cause was settled according to the judgment referred to in the answer of the said Rosa Lartigue as said judgment was amended as alleged in said answer. These respondents admit that the said Rosa Lartigue did not consent to said judgment, and deny that she had any interest in said money, and that her consent was required or necessary.

"* * * Respondents further deny the right of the said Rosa Lartigue to question the aforesaid settlement, and respectfully allege that by failing to appear in said claim suit and propound her claim to the said $5,040.00, or any part thereof, she is now estopped to claim the same or any part thereof, and these Respondents deny that she, not being a party to said agreement, is now in position to allege or plead an estoppel on the part of these Respondents to claim the said funds in the hands of the Complainant in this cause. These Respondents further allege that in truth and in fact, no part of the said $5,040.00 was ever property of the said Mrs. Clara Moskowitz, the other Respondent, as evidenced by her failure to appear in said garnishment proceedings after due notice thereon and propound her claim, and that the claim now propounded is simulated and fraudulent."

Such were the original pleadings. It may not have been necessary to state the effect of the original answer. However, when the respondent Clara Moskowitz demurred to the claim and answer of the respondents (appellants), demurrer being sustained, the appellants amended their claim by re-writing paragraph five thereof, as follows: "5. These respondents admit that the complainant in the bill of complaint as amended is disinterested in the controversy over the ownership of said money and that he claims no interest therein except that of a stake holder, and that he desires to so act in the premises that the money may be paid over to the true owner thereof and that he may be relieved of all liability in connection therewith. These respondents admit that the complainant can accomplish this purpose only by interpleading the rival claimants to said money; namely, these respondents and the said Clara Moskowitz, and by paying into the Registry of this Court said sum of $973.38, which payment these respondents are informed and believe, and on information and belief allege, has actually been made. These respondents therefore admit that the facts of this case present proper matter for a bill of interpleader. And further answering the bill of complaint and the claim of the other respondent Clara Moskowitz, filed in this cause, these respondents say that it is true that Rosa Lartigue sued out a writ of garnishment on a judgment which she had recovered against the respondent, Clara Moskowitz, in the Circuit Court of Mobile County, and caused Warren F. Burch to be summoned as garnishee, and that thereafter the garnishee filed his answer in said cause, and that Exhibit 'A' attached to the answer of the respondent, Clara Moskowitz, is a true copy of the garnishee's said answer."

It is further admitted in answer that a claim was filed by them as Administrators of the Estate of Margaret Cox, deceased claiming the money which the said Warren F. Burch had found, in the execution of said search warrant, concealed in the home of the said Clara Moskowitz, as the property of the Estate of Margaret Cox, deceased; that thereafter an issue was made up between them, and the said Rosa Lartigue as to whether so much of said monies as were necessary to satisfy a judgment which the said Rosa Lartigue had procured against the said Clara Moskowitz belonged to the said Clara Moskowitz, and were subject to said garnishment, or whether they belonged to these respondents, then claimants, and that a verdict was rendered in said suit in favor of the said Rosa Lartigue, but that said verdict was reversed by the Supreme Court of the State of Alabama; that the said Clara Moskowitz as the defendant in the original suit brought by the said Rosa Lartigue was duly served with notice of the issuance of said garnishment, but that she wholly failed to enter any appearance in said cause, and did not interpose any claim to any part of said funds; that there was no occasion to give to the said Clara Moskowitz any further notice or advice as to any further proceedings in said cause and that the said Clara Moskowitz, having had notice of the suing out of said garnishment, and having failed to enter any appearance therein or claim said money or any part thereof, thereby abandoned her claim thereto, and was herself solely responsible for her lack of knowledge of any subsequent action taken...