Lippman, Morrison & Co. v. Warren
| Decision Date | 05 May 1902 |
| Parties | LIPPMAN, MORRISON & COMPANY, Appellants, v. W. H. WARREN, Sheriff, etc., Respondent; JENNIE SAUNDERS, Interpleader |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. H. C. Timmonds, Judge.
REVERSED (with directions).
Judgment reversed.
E. B and H. M. Chestnut for appellants.
(1) An interpleading suit involves two successive litigations, the one between the plaintiffs (in the bill) and the defendants upon the question, whether the defendant shall interplead the other between the different defendants, i. e., the interpleader itself. The subject of these two litigations are wholly separate and distinct. Story Eq. Pl., sec. 291; Langsdell on Eq. Pl., sec. 162; Roselle v. Bank, 119 Mo. 84. (2) In such case, the only decree that the plaintiff can have is that the defendants do interplead. Story Eq. Pl sec. 297. When this is obtained, the plaintiff is altogether out of the suit, leaving the defendants alone to contest their conflicting claims. Glassner v. Weisberg, 43 Mo.App. 214; 2 Daniel Ch. Prac., 1659, 1660, 1675, 1680; Ins. Co. v. Ins. Co., 23 Minn. 7; Temple v. Dawson, 19 Barb. (Ark.), 148. (3) With the decree determining the rights of the defendant interpleaders to the fund he would have no concern and could not be heard to call it in question by motion for rehearing. State ex rel. v. Kumpff, 62 Mo.App. 336. (4) The three-sided controversy between the defendant, the plaintiffs, and the interpleader, involving the interpleading itself, was litigated to a final judgment in the circuit court of Jasper county, and the proper decree entered in that court. State ex rel v. Sutterfield, 54 Mo. 394; Gale v. Mitchie, 47 Mo. 326; Story Eq. Pl., sec. 297; Temple v. Dawson, 19 Barb. (Ark.) 148. (5) The decree of the circuit court of Jasper county is res adjudicata and is a complete estoppel in every other jurisdiction and the matters determined therein can not be reopened by the circuit court of Vernon county. Wells on Res Adjudicata, ch. 22; Henry v. Woods, 77 Mo. 280; Railroad v. Levy, 17 Mo.App. 507; Biglow on Estoppel (4 Ed.), 37; Herman on Estoppel, secs. 99, 100; Herman on Estoppel and Res Adjudicata, sec. 111.
Thomas & Hackney and F. M. Redhum for respondents.
--This is an action based upon the provisions of section 3221, Revised Statutes 1899. The petition alleged that the defendant, Warren, was sheriff of Jasper county, and had in his possession an execution in favor of plaintiffs against the interpleader herein, and on which he had made the money therein specified, but did not have it before the court, nor did he pay it over according to law.
The answer of the defendant admitted the truth of the allegations of the plaintiffs' petition, and then alleged that the execution defendant was a resident of Jasper county, a housekeeper and head of a family, and that she had given him written notice that she elected to take the said sum of money in his hands as exempt property in lieu of that mentioned in the first and second subdivisions of section 3159, Revised Statutes 1899 and that she claimed said money as exempt, etc. And further that the defendant had refused to pay said sum to either plaintiffs or the execution defendant, lest he be required to pay the same a second time, and that he was at all times ready and willing to pay it over to the party entitled thereto; that he had no interest in it, and offered to bring it into court, etc. The prayer was that the court require the execution defendant to interplead in the cause and submit her rights to its judgment so that defendant might be protected in the payment, etc.
And thereupon a rule was awarded to the execution defendant requiring her to appear and interplead for the fund, which rule was duly served and thereafter she appeared and filed an interplea in the cause. After she had filed her interplea, a change of venue of the cause was, on her application, granted to the county of Vernon, where the plaintiffs filed a motion for judgment on the pleadings to the effect that the money on deposit be paid over to them. Afterwards, pending the plaintiffs' motion for judgment, the court permitted the interpleader to withdraw her interplea and to be discharged under the rule requiring her to interplead, and thereafter the court sustained the plaintiffs' motion, ordering the fund in the custody of the clerk to be paid over to the plaintiffs.
After this order had been made, defendant Warren reappeared in the cause and filed a motion to set aside the same, which was sustained. The defendant thereupon filed an amended answer, pleading substantially the same facts as were pleaded in his first answer. In this latter the defendant prayed that the interpleader be again required to interplead and establish her claim, if any she had, to the fund in the custody of the court, etc. The plaintiffs filed a motion to set aside the order of the court vacating its decree and directing the payment of the fund to them, which was denied by the court.
When the...
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