Lavelle v. Belliu
| Decision Date | 05 November 1906 |
| Parties | CHARLES LAVELLE, Respondent, v. JAMES BELLIU et al., Appellants |
| Court | Kansas Court of Appeals |
October 1, 1906;
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
AFFIRMED.
Cause affirmed.
Hairgrove & Stubbs for appellant.
(1) The petition fails to state a cause of action because: (a) The petition shows upon its face that plaintiff is not a mere stakeholder; and fails to allege that plaintiff is likely to be vexed by two or more suits by two or more different parties, going on at the same time. (b) The petition shows upon its face that plaintiff received the property in controversy as the agent of appellant, and the relation of principal and agent existed between plaintiff and appellant at the commencement of this suit. (c) The petition shows upon its face that plaintiff was a wrongdoer as to appellant at the commencement of this suit, in this: that it was plaintiff's duty to return to appellant the bill in controversy when he had accomplished the purpose for which he received it, and particularly upon demand. (d) The petition shows upon its face that the several defendants do not trace their title or right of possession to the property in controversy to a common source. Hathaway v. Foy, 40 Mo. 544; 2 Story, Eq. Jur. (12 Ed.), secs. 806, 807, 816 817b, 819, 820; Tyrus v. Rust, 37 Ga. 574; Hatfield v. McWhorter, 40 Ga. 269; Gibson v Goldthwaite, 7 Ala. 282; 11 Ency Pl. and Pr., p. 457; U. S. v. Vietor, 16 Abb. Pr. (N. Y. Sup. Ct.), 153; 11 Ency. of Pl. and Pr., p. 459; Kyle v. Coal Co., 112 Ala. 606; Pfister v. Wade, 56 Cal. 43; Ryan v. Lamson, 44 Ill.App. 204; Mitchell v. Mfg Co., 26 Ill.App. 295; Ins. Co. v. Pingrey, 141 Mass. 411; Sprague v. Soule, 35 Mich. 35; Wells v. Miner, 25 F. 533; Standley v Roberts, 59 F 836; Stone v. Reed, 152 Mass. 179; Supreme Council L. of H. v. Palmer, 107 Mo.App. 163; Marvin v. Ellwood, 11 Paige 365; Atkinson v. Manks, 1 Cowen 703; Shaw v. Coster, 8 Paige 339. (2) The petition fails to state a cause of action against the appellant because it shows upon its face that defendant appellant, was rightfully in possession of the property and had vested rights therein by virtue of being the finder thereof, and that plaintiff received the property from appellant as his agent and upon an express or implied promise to return it to appellant. R. S. 1899, secs. 8475-8479.
Frank P. Sebree and Thad. B. Landon for respondent.
(1) The only questions which this court is called upon to determine is whether the petition states a cause of action, and whether the court has jurisdiction. The bill of interpleader, or petition, in this case is a good bill, therefore states a cause of action. Bishpam's Principles of Equity, sec. 422; Gibson v. Goldthwaite, 6 Ala. 281; Lawson on Bailments, p. 11; 19 Am. and Eng. Ency. Law (2 Ed.), p. 580; Woodmen of the World v. Wood, 100 Mo.App. 658; Crane v. McDonald, 118 N.Y. 648; Arnold v. Bank, 100 Mo.App. 474; Railroad v. Hamagan, 95 Mo.App. 485; Supreme Council v. Palmer, 107 Mo.App. 157; Wells, Fargo & Co. v. Miner, 25 F. 533; Cobb v. Rice, 130 Mass. 231. (2) Appellant has waived all other objections to the bill by going to trial on the merits. That there was a remedy at law has been waived by appellant. Kilbourn v. Sunderland, 130 U.S. 505; Fletcher, Equity Practice, sec. 194; Supreme Council v. Palmer, 107 Mo.App. 164; Heusner v. Ins. Co., 47 Mo.App. 336; Cobb v. Rice, 130 Mass. 231. (3) It was not necessary that the court make an order that the parties interplead before hearing the case on its merits, when the issues were made up and all questions could be heard and disposed of at the same time. State ex rel. v. Kumpff, 62 Mo.App. 336; Fletcher, Equity Pr., sec. 790; Bank v. Look, 95 Mich. 7; Kirtland v. Moore, 40 N. J. E. 106.
--As the case is to be disposed of on the record proper, it becomes necessary to state the contents of the pleadings and the orders and judgment of the court.
The petition of plaintiff alleges that on or about the 20th day of October, 1904, the defendant represented to plaintiff that on said day he had found in the city of Independence a five-hundred-dollar bill of the currency of the United States; that defendant gave the bill to plaintiff with the request that he ascertain whether it was genuine or counterfeit; that prior thereto the bill had been presented by defendant's father to a meat merchant in said city in payment for the purchase price of twenty-five cents worth of meat; that after defendant had given the bill to plaintiff to learn whether the same was genuine or not, and after it had been ascertained that it was genuine, he came to plaintiff and requested him to have it changed and to give one hundred dollars to the meat merchants to keep their mouths shut, to keep two hundred dollars himself, and to give him, defendant, two hundred dollars, and that each say nothing about the finding of the money, which plaintiff refused to do; that he placed the bill in an envelope in the presence of defendant, W. A. Symington, cashier of the First National Bank of Independence, and placed the envelope containing the money with said Symington until it could be determined who was the true owner thereof, and the plaintiff at once proceeded to notify the officers of the law of the county concerning said bill and to advertise in the newspapers for the owner. Plaintiff alleges that defendant Belliu after he had placed the bill in his hands made affidavit of the finding of money amounting to more than ten dollars, but afterwards sought to obtain possession thereof in order that he might cash it and use the proceeds, and thereby deprive the owner of his money. The petition alleges that since the publication of said notices in the newspapers the defendants, William Frye, W. I. White and Belle P. McArthur, have each made and filed with plaintiff a written statement describing a $ 500 bill and each claiming to be the true owner of the bill. The petition then sets forth the respective claims of the three persons named.
The petition further states that defendant Belliu now demands the bill and threatens to convert the same to his own use and deprive the owner of his money; that plaintiff has no claim or interest in the money except to see that it is returned to the true owner, and that he has no knowledge or information sufficient to determine what the actual rights of the different defendants in and to the bill are, or may be, and that he is unable to return it to the rightful owner until said rights have been determined, although he is ready, willing and desirous to do so. The plaintiff prays that the respective claimants to the bill be required by order of the court to interplead among themselves as to their respective rights to the money and that the court adjudge to whom it belongs. Plaintiff offers to the court the care and custody of the bill and asks to be protected against all liabilities on account thereof. It is further stated that defendant Belliu has demanded of him the bill and has brought a replevin suit to obtain its possession. A restraining order is asked to prevent the further prosecution of the replevin suit until the rights of all the parties may be ascertained and declared by the court.
One of the claimants, William Frye, filed his interplea claiming the bill.
Afterwards the defendant Belliu filed a motion to dismiss plaintiff's bill and dissolve the restraining order that had been issued. The court declined to pass upon the motion thus filed, whereupon defendant Belliu filed his answer. The answer at first is a general denial and then follows substantially these allegations: That he found the bill as stated in plaintiff's petition; that plaintiff obtained possession of it for the purpose of having it examined to ascertain if it was a good bill or a counterfeit one; and that at the time he promised to return the same to defendant, but that he did not do so, but instead secreted it and refused to return it although he was so requested. The answer further alleges that defendant is entitled to the possession of the bill by reason of the fact that he was the finder thereof, the same having been lost by the true owner; that prior to this action defendant had commenced an action in replevin for the recovery of said bill, which at the time of the commencement of this suit was pending and undetermined; and that plaintiff and said First National Bank were defendants in said action; that he gave a good and sufficient bond as required by law in such cases. Wherefore he prays that the action be abated, etc. Plaintiff filed a reply to defendant's answer.
Defendant also filed an answer to the interplea of William Frye consisting of a general denial.
Defendant, W. A. Symington, filed his separate answer admitting that he had possession of the bill and was holding it subject to the order of the court.
Plaintiff filed reply to answer of William Frye, interpleader, stating that he had no knowledge or information of the facts set forth in said answer, and asking the court to require strict proof thereof.
A trial was had before the court without the...
To continue reading
Request your trial