Guaranteed State Bank of Durant v. D'Yarmett

• Decision Date: 09 October 1917
• Docket Number: 6425.
• Citation: 169 P. 639,67 Okla. 164,1917 OK 490
• Parties: GUARANTEED STATE BANK OF DURANT v. D'YARMETT et al.
• Court: Oklahoma Supreme Court

169 P. 639

67 Okla. 164, 1917 OK 490

GUARANTEED STATE BANK OF DURANT v. D'YARMETT et al.

No. 6425.

Supreme Court of Oklahoma

October 9, 1917

On Petition of Plaintiff in Error for Rehearing, Jan. 8, 1918.

Syllabus by the Court.

In an action of strict interpleader, the plaintiff must show that conflicting claims are made against him by two or more persons for the same thing; that he has no interest in the subject-matter of their controversy; and all the relief he can ask is that, on payment of the fund into court, his liability shall cease, and the hostile claimants be required to settle their dispute among themselves.

But under a bill in the nature of a bill of interpleader the plaintiff has a right to ask for affirmative relief, as, for example, where there is a dispute between persons as to which is entitled to a debt due for certain paving, the owner of the property chargeable with the debt may file a bill to procure a decree adjudging which of the hostile claimants is entitled to the fund, and that, on its payment, the paving bonds issued against such fund shall be surrendered to him for cancellation.

[Ed Note.-For other definitions, see Words and Phrases, Second Series, Strict Interpleader; First and Second Series, Bill in the Nature of Interpleader.]

The delivery of void paving bonds by D. to G. as collateral security for a debt from D. to G., does not work an equitable assignment of a debt from M. to D. for the cost of the paving, against which the bonds were issued.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Equitable Assignment.]

A lien is a charge imposed upon specific property, by which it is made security for the performance of an act.

An assignment is a transfer or setting over of property, or of some right or interest therein, from one person to another and unless in some way qualified, it is properly the transfer of one's whole interest in an estate, or chattel, or other thing.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Assignment; Lien.]

An assessment to pay the cost of street improvement, under chapter 10, S. L. 1907-08, made against the owner, and not against the property adjacent or contiguous to the improvement, is void; paving bonds issued to cover the cost of said improvement are void and subject to cancellation in an action brought for that purpose.

Additional Syllabus by Editorial Staff.

On Petition of Plaintiff in Error for Rehearing.

A claim or defense cannot be changed to secure a reversal on appeal.

Questions not raised and properly presented for review in the trial court will not be noticed on appeal.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge.

Action by the Missouri, Kansas & Texas Railway Company against E. C. D'Yarmett, the Guaranteed State Bank of Durant, and others. Judgment in favor of plaintiff, and judgment for defendant the Guaranteed State Bank of Durant against defendant D'Yarmett denying a lien, and the Guaranteed State Bank brings error, and D'Yarmett files a cross-petition in error. Affirmed.

Hatchett & Ferguson, of Durant, and Fuller & Porter, of McAlester, for plaintiff in error.

Clifford L. Jackson, W. R. Allen, M. D. Green, and Charles P. Gotwals, all of Muskogee, Tibbetts & Green, of Guthrie, H. M. Gray, Wilson, Tomerlin & Buckholts, and Phillip E. Winter, all of Oklahoma City, for defendants in error.

OWEN J.

This action was brought by the Missouri, Kansas & Texas Railway Company, in the district court of Bryan county against E. C. D'Yarmett, the Guaranteed State Bank of Durant, and others. The petition alleged, in substance, that the city authorities of Durant had ordered certain paving, and created an improvement district which included the railway company's right of way at the street crossing; that the railway company had the option of paving between its tracks, but the city authorities had assessed the cost of said improvement against the railway company, and had issued paving bonds for said amount; that the railway company had, in fact, paved that portion of its right of way included in the district under contract with the defendant D'Yarmett with the consent and approval of the city authorities; that the assessment and bonds were void for the reason the assessment was made against the company and not against the property included in the improvement district; that the company had at all times been ready and willing to pay D'Yarmett the contract price for said paving as soon as D'Yarmett complied with the terms of the contract by furnishing the company with receipts for all claims for labor and supplies; that the paving bonds were outstanding and constituted a cloud upon the title of the company's right of way; that other persons named as defendants were claiming to be the owner by assignment of said bonds and of the funds due D'Yarmett; that various defendants claiming to be creditors of D'Yarmett had garnished the railway company in various actions pending in different courts, and that the railway company had been sued in a number of actions by different persons presenting claims against D'Yarmett for labor and supplies growing out of said paving. The petition joined all persons mentioned as defendants, and prayed that they be required to set forth their claims against D'Yarmett growing out of said pavement and their interests or claims in and to said funds; that the bonds be adjudged void and surrendered for cancellation, the city enjoined from collecting the assessment, and that the court determine to whom the company should pay the funds which it contracted to pay D'Yarmett for said paving. Upon trial of the various issues joined, the court found that the work performed by D'Yarmett under contract with the railway company was in all respects done with the consent and approval of the city; that the assessment against the company and the bonds issued therefor were void, and directed a cancellation of the assessment and of the bonds. The company was directed to pay to the clerk of the court the amount contracted to have been paid D'Yarmett.

As between the various defendants claiming an interest in the fund, the court found that the defendants American Asphaltum & Rubber Company and William Gethmann had valid prior liens upon the fund in question in sufficient amounts to exhaust same, by virtue of certain garnishment proceedings. The Guaranteed State Bank was awarded judgment for $5,000 against D'Yarmett, but was adjudged to have no valid lien on the fund. From this judgment the Guaranteed State Bank appealed, and D'Yarmett filed a cross-petition in error.

A motion to dismiss the appeal was filed by defendant in error D'Yarmett, alleging the lower court was without jurisdiction of the subject-matter, and without power to render the judgment entered. In support of this contention it is urged by counsel that the action cannot be maintained as a bill of interpleader because the railway company, asking affirmative relief, is not a mere stakeholder; that it cannot be maintained as a bill in the nature of a bill of interpleader for the reason that the railway company is not entitled to equitable relief against all the parties. We agree that this action is not one of interpleader, strictly speaking, but it is not necessary that the relief must be purely equitable against the several parties before the action can be maintained as a bill in the nature of a bill of interpleader. The railway company is a stakeholder of the fund due to D'Yarmett, and offers to pay that on determination by the court to the party entitled to same. The company also asks for affirmative relief against the city to enjoin the collection of the assessment, the cancellation of the bonds, and to remove the cloud from its title. A bill in the nature of a bill of interpleader is one in which the complainant seeks some relief of an equitable nature concerning the fund or subject-matter in dispute, in addition to interpleader of conflicting claimants. In Pomeroy's Equity Jurisprudence, vol. 5, § 60, it was said:

"The complainant is not required, as in strict interpleader, to be an indifferent stakeholder, without interest in the subject-matter."

To the same effect is section 1571, Daniell's Chan. Pl. & Pr. (5th Ed.) and Story's Eq. Jur. (13th Ed.) § 824. In the case of Hayward & Clark v. McDonald, 192 F. 890, 113 C. C. A. 368, it was said:

"A complainant may have in his hands property or money to which others have conflicting claims, in reference to which property or conflicting claims the complainant may have equitable rights or claims and be entitled to equitable relief. In such case, while he cannot maintain a bill of interpleader strictly so called, he is nevertheless entitled to relief, and is permitted to maintain a bill in the nature of a bill of interpleader."

Another case in point is Illingworth v. Rowe, 52 N. J. Eq 360, 28 A. 456. The subject-matter of the action here was the fund representing the paving work done by D'Yarmett. The railway company claimed an equitable interest in the subject-matter, that is, upon payment of the funds due D'Yarmett it was entitled to have the assessment and the bonds canceled and to be relieved of liability to the various parties making claims against the funds. The bonds issued to cover this assessment were in the hands of the Guaranteed State Bank. The company had been sued by various parties to recover the fund held by it representing the value of the paving work done by D'Yarmett. The company had been made garnishee in suits in which it was sought to secure these funds, or portions...