Lokey v. Ward

• Decision Date: 10 May 1934
• Docket Number: 6 Div. 385.
• Citation: 228 Ala. 559,154 So. 802
• Parties: LOKEY v. WARD.
• Court: Alabama Supreme Court

154 So. 802

228 Ala. 559

LOKEY v. WARD.

6 Div. 385.

Supreme Court of Alabama

May 10, 1934

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by Annie Nolan Ward, as executrix of the estate of Wilburn A Ward, deceased, against the First National Bank of Birmingham, which prayed for an interpleader, whereupon notice was issued to Thad Belsher, as executor of the estate of Fannie E. Belsher, deceased, claimant. From a judgment for plaintiff, claimant appeals. Revived on death of Thad Belsher in name of J. D. Lokey, as administrator of the estate of Fannie E. Belsher, deceased.

Modified and affirmed.

Oliver D. Street, of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, and Brown & Brown, of McDonough Ga., for appellee.

FOSTER Justice.

This is a statutory interpleader under section 10386, Code, for a sum of money alleged in the complaint to have been deposited by plaintiff's intestate in defendant bank. The defendant made affidavit and prayed for an interpleader under section 10386, Code. Notice was thereupon issued to the claimant and duly served. Claimant then made an appearance in writing, in which he expressly made himself a party, and set up his claim to the fund.

The cause was regularly set down for hearing. Claimant failed to appear, and the judgment recites that he was solemnly called and came not to defend the suit, and the court proceeds to hear and determine the cause, and found the issue in favor of plaintiff and against claimant.

Motion was made to set aside the judgment. It was overruled. The appeal is from the original judgment.

In accord with the expressed opinion of counsel for both parties, we consider the judgment as in the nature, either of nil dicit or default. So that an appeal does not lie from the order overruling the motion to set it aside, nor is it assignable for error on appeal from the judgment on the merits. Ex parte Haisten, 227 Ala. 183, 149 So. 213; Ex parte Parker, 172 Ala. 136, 54 So. 572; Brazel v. New South Coal Co., 131 Ala. 416, 30 So. 832; Hershey Chocolate Co. v. Yates, et al., 196 Ala. 657, 72 So. 260; Ex parte Doak, 188 Ala. 406, 66 So. 64; Ex parte Gay, 213 Ala. 5, 104 So. 898; Brown v. Brown, 213 Ala. 339, 105 So. 171; Gibson v. Farmers' Bank, 218 Ala. 554, 119 So. 664; Mosaic Templars v. Hall, 220 Ala. 305, 124 So. 879.

The question is whether there was error in the rendition of the judgment on the merits. There are many contentions made by appellant in this respect. It is claimed that such a judgment is error before the court determines and declares whether it is a proper case for interpleader. Such a determination is in fact required by section 10386, Code, though not so required prior to the Code of 1923.

In the case of Cloud v. Dean, 212 Ala. 305, 102 So. 437, it was held that the requirement of section 6050, Code of 1907, that an order be made substituting the claimant as the defendant, and discharging the original defendant, need not be done in so many words, but it resulted as a matter of law when the court granted the petition of intervention, and the claimant made appearance, without objection.

In this case the court made an order for notice to the claimant, and that the money be held and impounded pending the trial of claimant's issue. This was followed by the written appearance of claimant in which he expressly makes himself a party defendant, and then sets up his claim to the fund. The claimant thereby waived so far as he was concerned the requirements of the statute as to proceedings leading up to his substitution as defendant, and waived the order making such substitution. However, unless thus waived, the claimant may contest the right to require an interpleader, Schrader Co. v. A. Z. Bailey Grocery Co., 15 Ala. App. 647, 74 So. 749, but must do so before propounding his claim or making himself the defendant.

The plaintiff may have cause to complain of the right of defendant to interplead as shown in the case of Stewart v. Sample, 168 Ala. 270 (6), 53 So. 182. But plaintiff did not do so when he had the opportunity, and cannot and does not now. Nelson v. Goree's Adm'r, 34 Ala. 565. When defendant files the affidavit and makes the motion for an interpleader, notice should issue to the claimant named.

The proper procedure, as the cases show, is that either plaintiff or claimant may then contest the question of whether a proper case for interpleader exists, either by a demurrer or other pleading. But such contest may be waived by both parties, and they do so by proceeding as though a proper order had been made, making no claim to the contrary, or recognizing otherwise that it is not insisted upon.

Appellant also claims that the issues were not sufficiently made to support a judgment by default or nil dicit because plaintiff had not propounded his claim. But the complaint is a sufficient claim by the plaintiff.

Though the claim of appellant may be too general, if objection is made, Johnson v. Maxey, 43 Ala. 521; Schrader Co. v. A. Z. Bailey Grocery Co., supra, such condition is not available to appellant who was the claimant.

The contention is also made by appellant that, after the claimant makes himself a party, and propounds his claim, though under the pleadings thus framed he has the duty to proceed, and the cause is regularly set down for hearing, and the claimant then fails to make further appearance, it is reversible error to render a judgment for plaintiff by reason of such default. That contention prompts a reference to certain principles which have been discussed and fairly well settled by our cases.

It is not fatal to its sufficiency whether the judgment is by default or nil dicit, if the record shows that one or the other was proper. The improper form in this respect does not render the judgment reversible error. Eminent Household v. Lockerd, 202 Ala. 330, 80 So. 412; Hendley v. Chabert, 189 Ala. 258, 65 So. 993; Elyton Land Co. v. Morgan, 88 Ala. 434, 7 So. 249; Atlantic Glass Co. v. Paulk, 83 Ala. 404, 3 So. 800; McCaskey v. Pollock, 82 Ala. 174, 2 So. 674.

Our cases in the main are consistent with the doctrine that if a defendant files a plea which casts the burden on plaintiff, and then does not appear further, the court commits error to reversal if it renders a judgment by default or nil dicit. McCoy v. Harrell, 40 Ala. 232; Green v. Jones, 102 Ala. 303, 14 So. 630; Clements v. Mayfield Woolen Mills, 128 Ala. 332, 29 So. 10.

But if defendant interposes only an affirmative defense by way of confession and avoidance, the burden of proof is on him, and if he fails to appear to sustain it, he is not prejudiced by a judgment by default or nil dicit. McCollom v. Hogan, 1 Ala. 515; Dougherty v. Colquitt, 2 Ala. 337; McCoy v. Harrell, supra; Schwarz v. Oppenheimer, 90 Ala. 462, 8 So. 36; Hutchison v. Powell, 92 Ala. 619, 9 So. 170; Brandon v. Leeds State Bank, 186 Ala. 519, 65 So. 341; McCord v. Harrison & Stringer, 207 Ala. 480, 93 So. 428.

And since a demurrer imposes on defendant the duty to have it submitted and heard, if he does not come into court for that purpose, he should be treated as though he had interposed an affirmative defense with the burden to prove it. Some of our cases hold that when he fails thus to come into court he thereby abandons his demurrer, and a judgment by default or nil dicit is not a reversible error. Hendley v. Chabert, 189 Ala. 258, 65 So. 993; Brandon v. Leeds State Bank, supra; Elyton Land Co. v. Morgan, 88 Ala. 434, 7 So. 249; American Mortgage Co. v. Inzer, 98 Ala. 608, 13 So. 507.

But another asserts in a dictum that one who demurs is in the same attitude as one who pleads the general issue, and that it is error to render a judgment by default or nil dicit against him. Ex parte Haynes, 140 Ala. 196, 37 So. 286 (criticized in Brandon v. Leeds State Bank, supra).

In Brandon v. Leeds State Bank, supra, as in some others, the distinction between an affirmative plea or a demurrer and one which puts the burden on plaintiff is not mentioned, but the facts, when analyzed, show it is applicable. That was a suit on a note in which a general denial by one defendant and a demurrer by others cast no burden on plaintiff. But when in such a suit a plea of non est factum is interposed, the burden is so cast, and a judgment as for a default has been held to be inappropriate and reversible error. McCoy v. Harrell, supra; Home Protection of N. Am. v. Caldwell, 85 Ala. 607, 5 So. 338.

In L. & N. R. R. Co. v. Walker, 128 Ala. 368, 30 So. 738, and in White v. Whatley, 128 Ala. 524, 30 So. 738 (cited by appellant), plaintiff was held by the trial court to be in default for a refusal to plead further when he had on file replications and demurrers to various pleas. It does not appear that he was not present insisting on them. But being present, and with such pleading on file, he was not in default for not pleading further. Those cases, therefore, do not seem to affect our question.

It seems clear, therefore, that if the claim interposed in interpleader requires its active prosecution, the failure to follow up such claim by attending the trial and insisting on it renders a judgment as for default without prejudice to the claimant. It is in some respects analogous to a trial of the right of property levied on under execution, as provided in the same chapter of the Code with interpleader.

Section 10376, Code, puts the burden of proof on plaintiff. But he need only make a prima facie case by showing possession by defendant in execution. The claimant must then show a better title in him, and cannot rely on a title with which he is not connected. Shahan v. Herzberg, 73 Ala. 59; Jackson v. Bain, 74 Ala. 328; Ross v Lawson, 105 Ala. 351, 16 So. 890; Eldridge v. Grice, ...