McElfatrick v. Fletcher

• Decision Date: 29 January 1884
• Citation: 15 Mo.App. 102
• Parties: J. M. MCELFATRICK, Appellant, v. B. MACAULEY; D. S. FLETCHER, INTERPLEADER, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 102

J. M. MCELFATRICK, Appellant,

v.B. MACAULEY; D. S. FLETCHER, INTERPLEADER, Respondent.

St. Louis Court of Appeals, Missouri.

Jan. 29, 1884.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

HERMANN & REYBURN, for the appellant: No notice to obligors of order, to deliver the check to the sheriff, was required.--1 Rev. Stats., tit. ““““Attachment,” sects. 421, 451, 452, pp. 66, 72; Weed v. Dills, 34 Mo. 483. The lien of the attachment survived the execution of the bond by Fletcher, and attached to the check in his hands.--Drake Attachment (5th ed.), ch. 13, sect. 331; Evans v. King, 7 Mo. 411; Haber v. Klauberg, 3 Mo. App. 342. Fletcher, by receiving the property and placing himself and the check outside the jurisdiction of the court, dispensed with the notice to him of motion for judgment, contemplated by sect. 452 of 1 Rev. Stats., p. 72.--Drake Attachment, sect. 332, ch. 13; Driggs v. Harrington, 2 Mont. 30; Kirk v. Morris, 40 Ala. 225. Fletcher was estopped from alleging, in proceeding on the bond, ownership in himself of the check.--Drake Attachment, sects. 339, 340; Page v. Butler, 15 Mo. 74; Waterman v. Frank, 21 Mo. 108; Dorr v. Clark, 7 Mich. 310; Gray v. MacLean, 17 Ill. 404; Braley v. Clark, 22 Ala. 361; Cooper v. Peck, 22 Ala. 406; Morgan v. Furst, 4 Mart. (U. S.) 116.

MCKEIGHAN & JONES, for the respondent: All the interlocutory orders made by the court below, as well as the final judgment in the case, were in the breast of the court, and it had power to vacate and set aside all, or any of them, until after the lapse of the term of the court, at which final judgment was rendered.--Freeman on Judgments, sect. 90; Hill v. St. Louis, 20 Mo. 584; Harbor v. Pacific R. Co., 32 Mo. 423; Dougherty v. President, etc., 53 Mo. 579; Randolph v. Sloan, 58 Mo. 155. The respondent had the right to interplead for his property, and is not now estopped from doing so.-- Page v. Butler, 15 Mo. 73; Bigelow on Estop. 430.

THOMPSON, J., delivered the opinion of the court.

The substance of this matter, buried in motions and cross-motions, is that the plaintiff brought a suit by attachment against Macauley, and levied the same on a cashier's check for $815, in the hands of Fletcher. Fletcher gave a forthcoming bond with two sureties. The attachment suit proceeded to judgment against the defendant. Execution was returned nulla bona. On motion of the plaintiff, the court ordered the sheriff to assign the forthcoming bond to the plaintiff, which the sheriff accordingly did. Thereupon, on motion of the plaintiff, an order was made by the court upon Fletcher, the obligor in the bond, to deliver the check to the sheriff on a day named. This order was served on the sureties in the bond, but was returned “not found,” as to Fletcher, the principal in the bond, and as to the defendant in the attachment suit. The order not having been obeyed, the plaintiff moved for judgment on the forthcoming bond. Notice of the motion was served on the sureties, but not upon Fletcher, the principal. The latter, however, appeared by counsel, and filed a motion supported by affidavit, asking the court that he be allowed to deliver the certified check, or the amount of money for which it was drawn, into the hands of the sheriff, and that he thereafter be allowed to interplead for the same. In this application he set forth that, at the time the forthcoming bond was given, it had been agreed between him, Fletcher, and the plaintiff, that he, Fletcher, should, under proper issues, litigate the question as to who was the true owner of said money and said check. The court granted this motion. Fletcher filed his interplea, at the same time moving the court to set aside the submission of the motion for judgment on the forthcoming bond, and to refuse and deny said motion. The plaintiff moved the court to set aside the order allowing Fletcher to interplead. The plaintiff declining to answer the interplea, the court rendered judgment by default in favor of the interpleader; and from this judgment the plaintiff has appealed.

We think that there was no authority in law for allowing Fletcher to interplead after the attachment suit had ended. It is true that the statute (Rev. Stats., sect. 449) does not in terms prescribe at what period a claimant of property which has been attached may interplead; but it says that “he may interplead in the cause,” and this clearly affords no authority for allowing him to interplead after the cause has ended. If the question were a new one, good reasons could be suggested for so holding. The parties to the cause have gone hence. In this case, although the plaintiff remained a moving party, asking the court for judgment on the forthcoming bond, yet the defendant Macauley, interested in the determination of the question whether the check belonged to him or to Fletcher, and also interested, as every debtor is, in having his property applied to the payment of his just debts, was not before the court, and was not a party to this proceeding upon the interplea of Fletcher, having never been notified. A stronger reason concerns the rights of the creditor. After levying his attachment upon property which is apparently that of his debtor, the sheriff taking a bond for the forthcoming of the property when ordered by the court, he is entitled to consider his debt secure, and to relax his efforts. If his debtor have other property, he may get it beyond the reach of process; and...