National Live Stock Commission Co. v. Thero
| Decision Date | 06 March 1911 |
| Citation | 135 S.W. 961,154 Mo.App. 508 |
| Parties | NATIONAL LIVE STOCK COMMISSION COMPANY, Plaintiff, Appellant and Respondent, v. W. F. THERO, Defendant, Appellant; F. J. DALBY, Interpleader, WILLIAM FLOWERS, Interpleader, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
Affirmed.
Botsford Deatherage & Creason for plaintiff appellant and respondent.
Jamison Hutchinson & Ostergard and George N. Elliott for defendant-appellant and interpleaders-respondent.
The plaintiff's suit is to recover on two promissory notes executed by defendant. One was for $ 1523.94, and the other for $ 50. The plaintiff sued out a writ of attachment alleging as ground therefor, that defendant was a non-resident.
Rice Brothers were summoned as garnishees who answered that they had in their hands $ 2000 belonging to the defendant, Thero, as the proceeds of the sale of certain cattle shipped by defendant to them and sold by them at the Kansas City Stock Yards; that the sum mentioned was due at the time of the garnishment. And further answering the garnishee stated that: Rice Brothers paid the $ 2000 into court, less fifty dollars allowed them as expenses for answering and they were discharged from the proceedings.
On December 20, 1907, F. J. Dalby filed his interplea claiming $ 635 of the said fund. And among other matters reciting that he was one of the parties referred to in the answer of the garnishee, being the owner of a draft for $ 635 included in the drafts amounting to $ 3500 in the hands of the First National Bank of Stamford, Texas, drawn by defendant Thero, on said Rice Brothers.
The, "interpleader further avers that the said draft so held by him, was given as the purchase price of part of said six car loads of cattle, in said answer referred to, with the distinct understanding, contract and agreement between the interpleader, the said Thero and the said Rice Brothers Commission Company, that said draft should, by the said company, be paid out of the proceeds of the said six car loads of cattle, when sold by the said Rice Brothers Commission Company, who had agreed with the said Thero to pay said draft out of such proceeds, which agreement, on the part of the said Commission Company, had been communicated to the said F. J. Dalby, at the time of the sale of the said cattle, and at the time of the receipt of said draft therefor.
"That the said Dalby accepted the said draft for the payment of a part of the said six car loads of cattle, relying upon the agreement of the said Rice Brothers Commission Company to pay the said draft, as aforesaid, out of the proceeds of the sale of said cattle," etc.
On the same day interpleader William Flowers filed his interplea describing a draft made payable to him by defendant for $ 362.50, and alleging also that by agreement of defendant, the commission company and himself, that the draft should be paid by the company out of the proceeds of the sale of said six car loads of cattle, when sold by the consignee and that said agreement was made prior to the sale of said cattle to the said Thero; and that he accepted said draft relying on said agreement, etc.
The plaintiff filed a general denial to each of said interpleas.
There was a separate trial before the court and jury on each interplea. At the close of the respective trials the court announced that it would give a peremptory instruction to find for the plaintiff, whereupon the interpleaders took non-suit with a leave to set aside.
Afterwards each interpleader was allowed over the objections of the plaintiff to file "another and amended interplea."
The amended interpleas were substantially the same as the former ones, only they were made more specific, and alleging that there were ten loads of the cattle instead of six. The answer to each of these new interpleas was a general denial and setting up the first trial and non-suit in bar.
The new interpleas were consolidated and tried by the court as an equity proceeding and the finding and judgment was in favor of the two interpleaders and the plaintiff appealed.
It is sufficient to say without recapitulation, that the evidence fully sustained the allegations of the interpleas, and the only question before the court, is, whether the judgments under the allegations of the interpleas and the evidence sustaining them were for the right parties.
We will first dispose of the preliminary question raised as to the right of the interpleaders after taking a non-suit to file other or amended interpleas. The interpleaders had the right under the code to take a nonsuit at any time before their cases were submitted to the jury. [R. S. 1899, sec. 198.] The recitation in the record that the interpleader took involuntary nonsuit did not make it such. It is said that: "To simply call it by that name will not make it involuntary." [Greene County Bank v. Gray, 146 Mo. 568, 571, 48 S.W. 447; Carter v. O'Neill, 102 Mo.App. 391, 76 S.W. 717.] Until the court had given a peremptory instruction to find for plaintiff there was no such ruling as precluded the interpleaders recovery. The announcement by the court that it would find for the plaintiff on the evidence and interpleader thereupon taking a non-suit with leave to set it aside, such non-suit is voluntary. [Green County Bank v. Gray, supra; Carter v. O'Neill, supra; McClure v. Campbell, 148 Mo. 96, 49 S.W. 881.] Consequently, there was no adjudication, and the interpleaders had the right to interplead anew.
Under section 2345, Revised Statutes 1909, "any person claiming property, money, effects or credits attached, may interplead," etc. And it is held that an interpleader under this statute must stand...
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