First Nat. Bank v. Geo. R. Barse Live Stock Comm'n Co.

• Decision Date: 25 October 1902
• Parties: FIRST NAT. BANK v. GEO. R. BARSE LIVE STOCK COMMISSION CO.
• Court: Illinois Supreme Court

198 Ill. 232

64 N.E. 1097

FIRST NAT. BANK

v.GEO. R. BARSE LIVE STOCK COMMISSION CO.

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, First district.

Bill of interpleader by Wood Bros. against the First National Bank and the Geo. R. Barse Live Stock Commission Company. From a judgment of the appellate court (99 Ill. App. 198) affirming a decree for said company, said bank appeals. Affirmed.

Alden, Latham & Young, for appellant.

Paddock & Billings, for appellee.

HAND, J.

This was a bill of interpleader filed by Wood Bros. on June 16, 1898, against the appellant, the appellee, and A. H. Wootters and T. F. Smith, in the superior court of Cook county, asking the direction of the court in the disposition of $2,397.47 in their hands, the net proceeds of a sale of 155 head of cattle which had been shipped to them from Gibson Station, Ind. T. On October 22, 1898, an interlocutory decree was entered in the cause sustaining the bill of interpleader, and decreeing that T. F. Smith and A. H. Wootters, who had each filed disclaimers, had no interest in the fund in controversy, ordering that the answers of appellant and appellee stand as interpleas or statements of their respective claims, and that the complainants deposit the fund, then amounting to $2,334.47, with the clerk of the court, and that they be dismissed out of the cause, and upon the final hearing the issues were found in favor of appellee, and it was decreed to be entitled to the fund, which decree has been affirmed by the appellate court for the First district, and a further appeal has been prosecuted to this court.

The bill of interpleader alleged that complainants were engaged in the live stock commission business at the Union Stock Yards, Chicago; that on September 3, 1896, they received 155 head of cattle from Indian Territory that had been shipped to them by A. H. Wootters; that said cattle were sold by them as commission merchants, on the open market, and, after deducting the expenses, commissions, etc., the sum of $2,397.47 was realized; that an itemized account of sales was promptly sent to said shipper on the 3d day of September, 1896, and that they received a telegram from A. H. Wootters, dated Wagoner, Ind. T., September 3, 1896, instructing them to remit the proceeds to the National Bank of the Republic, St. Louis, for account of H. F. Moore, cashier, Crockett; that on September[198 Ill. 234]5, 1896, they received a letter from A. H. Wootters confirming said telegram; that said H. F. Moore, referred to in the letter and telegram, was the cashier of the First National Bank of Crockett; that the First National Bank of Crockett notified the complainants it was entitled to the proceeds of the sale of the cattle under an alleged chattel mortgage executed by one T. F. Smith; that on September 11, 1896, the Barse Live Stock Commission Company brought an attachment suit in the superior court of Cook county,-cause No. 177,115,-in which A. H. Wootters was named defendant and the complainants named as garnishees; that the said attachment suit was pending until June 3, 1898, when it was dismissed, and complainants discharged as garnishees; that both the Bank of Crockett and the Barse Commission Company were claiming the money in the hands of complainants. Appellant filed an answer and interplea, alleging that it was entitled to the fund in the hands of the complainants by the terms of an agreement entered into by T. F. Smith in August, 1896, whereby Smith, being the owner of the cattle in controversy, agreed to ship the cattle in the name of A. H. Wootters, but for appellant, and thereby to assign and transfer to appellant the cattle in question for the purpose of taking up an indebtedness of said Smith to appellant, which was due September 1, 1896; that the cattle had been shipped, in accordance with the said agreement, for appellant; that the delivery of the cattle to Wootters was a delivery to appellant, and that appellant was entitled to the fund. Appellee filed an answer and interplea, claiming to be entitled to the fund under the terms of a chattel mortgage executed by T. F. Smith to appellee on October 25, 1895, said Smith being a resident of Crockett, Houston county, Tex. The cattle were located in the Creek Nation, Ind. T. That the mortgage was filed for record in Houston county, Tex., October 28, 1895, and on October 31, 1895, was filed in the office of the clerk of the United States court for the Northern district of Indian Territory, in accordance with the United States statutes, and that, consequently, appellee was entitled to the fund.

Three points are urged on this appeal as grounds for a reversal of the decree, two of them being questions of law and one a question of fact, viz.: (1) The prosecution of the attachment suit against Wootters by appellee was a bar to a recovery in this action. (2) The mortgage of the Barse Company was void as against the rights of appellant that accrued on August 31, 1896. (3) At the time the cattle in controversy were shipped to Chicago they were in the possession of T. F. Smith, and not in the possession of the Barse Company.

1. It is averred in the bill of interpleader that on September 11, 1896, an attachment suit was begun in the superior court of Cook county, wherein A. H. Wootters was made defendant and Wood Bros. were served as garnishees, for the purpose of reaching the proceeds of said cattle; that said attachment suit was dismissed June 3, 1898. The answer of both parties admitted the commencement of said attachment suit, and its dismissal without prejudice on the date named in the bill, and the evidence shows that the suit was dismissed on the stipulation of the parties thereto. We are of the opinion the mere bringing of the attachment suit by the Barse Company, which suit did not proceed to judgment, but was dismissed upon written stipulation without prejudice, did not constitute an election, nor estop the Barse Company from setting up its claim to the fund in this case. In Gibbs v. Jones, 46 Ill. 319, it was held that, when an action of trover is brought, an action in assumpsit between the same parties, brought to recover the value of the property, and which was dismissed without prejudice, cannot be specially pleaded in bar of the action of trover. And in Flower v. Brumbach, 131 Ill. 646, 23 N. E. 335, it was said: ‘The circumstance of a party having elected one of several remedies by action will not, in general, preclude him from abandoning such suit; and, after having duly discontinued it, he may adopt any other remedy.’ To the same effect are Stier v. Harms, 154 Ill. 476, 40 N. E. 296, and Barchard v. Kohn, 157 Ill. 579, 41 N. E. 902,29 L. R. A. 803. In Johnson-Brinkman Commission Co. v. Missouri Pac. Ry. Co., 126 Mo. 344, 28 S. W. 870,26 L. R. A. 840, 47 Am. St. Rep. 675, it was held that an attachment suit brought by a vendor of personal property against his vendee, if dismissed before final judgment, does not estop him from subsequently maintaining an action of replevin to recover the chattels, in the absence of any intervening rights, injury, or change of position by reason of the attachment. The word ‘election,’ as applied to remedies, is but another term for ‘estoppel.’ There is no element of estoppel by record, as the attachment suit was not prosecuted to judgment; and there is no estoppel in pais, for neither Wootters nor the bank has taken such action, in consequence of the suing out of the attachment, that they will receive detriment, in a legal sense, from the conduct of plaintiff. There were no intervening rights in the case from the time of suing out the attachment until suit was dismissed. Nor does it appear that the bank was, by reason of the commencement of said suit, induced to change its position with respect to the fund in controversy. If the attachment suit had proceeded to judgment, or there were intervening rights, or the position of the parties, by reason of the commencement of the suit, had been changed, a different question would be presented; but it having been dismissed upon the written stipulation of all the parties, without prejudice to the rights of any of them, all are in the same position they would have been if the suit had never been begun.

2. Prior to the recording of the mortgage congress had extended the laws of the state of Arkansas over the Indian Territory, including the law in relation to the acknowledging and recording of chattel mortgages. It seems that the statutes of that state in express terms did not provide for the recording of chattel mortgages in cases where the mortgagor was a nonresident of the state, which defect was attempted to be cured by an act of congress approved February 3, 1897. The consideration of the effect of said curative act becomes wholly immaterial if the Barse Company had taken actual and open possession of the cattle covered by its mortgage prior to the time when the rights, if any, of the bank accrued, which question is involved in appellant's third proposition.

3. The trial and appellate courts both held that the appellee had taken actual and open possession of the 155 head of cattle in controversy prior to their shipment to Chicago, and from a careful examination of the record, which covers more than 900 pages, and is mainly made up of testimony bearing upon that proposition, much of which was heard in open court by the chancellor, we are inclined to agree with the finding of said courts. The mortgage was for $35,254.91, bore date October 25, 1895, and described the property as situated in the Creek Nation, Ind. T., viz.: ‘Twenty-one hundred head of steers of the ages of three years and upwards, each and all bearing some one of the following brands, namely: 7W on right side of loin, 07 on left side, LM on left side, and X on the left side, being and including the entire lot and number of cattle owned by me; all said cattle now located in my pastures near Wagoner, Creek Nation, ...