North Pacific Lumber Co. v. Lang

• Decision Date: 09 December 1895
• Parties: NORTH PAC. LUMBER CO. v. LANG et al.
• Court: Oregon Supreme Court

42 P. 799

28 Or. 246

NORTH PAC. LUMBER CO. v. LANG et al.

Supreme Court of Oregon

December 9, 1895

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Bill of interpleader by the North Pacific Lumber Company against L Lang and others. From a decree sustaining the bill, and fixing the priorities of the several claimants to the fund in complainant's hands, defendants C.O. Bergman and John Linkman appeal. Modified.

About March 1, 1893, one Matti Makarainin, at plaintiff's instance, sold and delivered to it certain saw logs of the reasonable value of $331.31, from which the sum of $2.70 was to be deducted as scaling charges, leaving a balance due from plaintiff of $328.61, which Makarainin assigned two days thereafter to Eli Maketa, and he to defendants Lang & Co. on the 7th of the same month. After the sale, Makarainin gave to the defendant Matthieson an order upon plaintiff for $40 which was accepted subject to the ascertainment of the balance due Makarainin, prior, as Matthieson claims, to the assignment. On the 21st day of March, 1893, M.P. Callender caused the moneys due from plaintiff to be attached to secure in part a claim of some $3,492 against Makarainin. The defendants Lang & Co., having on June 1, 1893, commenced an action against plaintiff in the circuit court of the state of Oregon for Multnomah county to recover the said sum of $328.61, the plaintiff, on the 3d day of October, 1893, and before its time to answer or otherwise plead had expired filed a bill of interpleader, setting forth the foregoing facts, and further alleging "that defendants C.O Bergman and John Linkman also claim said sum of money *** under and by virtue of a certain judgment by them heretofore obtained against said Makarainin, and claimed by them to be duly levied upon said saw logs so sold to plaintiff, and upon said sum of $328.61 now remaining in the hands of plaintiff." A motion to make the bill more definite and certain having been overruled, the defendant Callender was, by consent, defaulted, and the other defendants filed answers and cross complaints. Separate demurrers were interposed by Lang & Co. and Matthieson to each of the answers and cross complaints of Bergman and Linkman, which demurrers were sustained December 4, 1893, and, failing to plead further, default was entered against them on the 15th day of February, 1894, and at the same time the court further decreed "that said defendants John Linkman and C.O. Bergman, and each of them, are not entitled to any of the money interpleaded by the plaintiff and deposited in this court, and that the other parties herein, or the claim or claims of those who shall hereafter be found to be entitled thereto, are declared to be prior to the claim of either of said defendants C.O. Bergman and John Linkman." On February 23, 1894, the court, with the consent of Lang & Co. and Matthieson, entered a decree declaring the costs of litigation a first lien on the fund, and directing plaintiff to pay Matthieson $40, and the balance remaining of said fund to Lang & Co. On February 24th Bergman moved the court for default and judgment against plaintiff upon the ground that it had failed to answer or reply to his answer and cross complaint, and at the same time Bergman and Linkman moved the court to set aside and vacate the orders of December 4, 1893, and February 15, 1894, and for a rehearing upon the demurrers of Matthieson and Lang & Co. On March 16, 1894, the court set aside the decree of February 23d, but refused to disturb the previous orders and decrees, or to give judgment by default against plaintiff. On March 29th, Lang & Co. moved for a decree in their favor upon the pleadings, and at the same time plaintiff demurred to the answers and cross complaints of Bergman and Linkman. The motion was overruled, and the demurrers sustained, whereupon Bergman and Linkman were granted leave to file amended answers and cross complaints, which they did April 27, 1894. To these plaintiff interposed a motion, but it does not clearly appear from the record whether it was to strike out part or all the denials because not proper amendments of the original answers, together with demurrers to the new matter, for the reason that it does not state facts sufficient to constitute a defense to the decreed that a proper case for interpleader had been shown; that plaintiff should not be taxed with the costs, and should be allowed $5 as attorney's fees; that Matthieson has a first lien upon the fund for $40, and that Lang & Co. have a valid claim for the balance; but that the costs and said $5 attorney's fees be first paid out of the said fund. From this decree C.O. Bergman and John Linkman appeal. Bergman, by his amended answer and cross complaint, in effect denies only the allegations of the complaint relating to the defendants Matthieson, Lang & Co., and Callender, and, then proceeding, sets up affirmatively the acquirement of certain loggers' liens upon said logs by himself and certain other persons under and by virtue of the laws of the state of Washington, all of which had been duly assigned to him in Lewis county in said state; that on October 27, 1892, and within 12 months after said liens were filed, he commenced a suit in the superior court of said Lewis county to foreclose said liens, and thereafter, on March 10, 1893, obtained a decree for $2,858.75, and for the foreclosure of said liens, which remains wholly unsatisfied; that the plaintiff, without his consent, and with full knowledge of his rights and equities, and of the fact that said claims of lien on said logs had been filed and suit begun to foreclose the same, eloigned, removed, and transported 89,975 feet of said logs, being the same logs mentioned in the complaint, to Portland, in the state of Oregon, about the 1st day of March, 1893, and thereafter sawed the same into lumber, thereby rendering identification uncertain and difficult,--of all which the other defendants had full notice and knowledge. The prayer is that the claims of the other defendants except Linkman be declared void as to him; that plaintiff's complaint be dismissed; and that said plaintiff be decreed to pay him, the said Bergman, the full sum of $331.31, to be divided pro rata between him and Linkman according to their several demands; and for such other relief as may seem meet in equity. The answer and cross complaint of Linkman is of like import.

David Stewart, for appellants.

Thos. N. Strong and Jos. N. Teal, for respondent.

WOLVERTON J. (after stating the facts).

It is not attempted by the foregoing statement to set forth or take note of all papers filed or all orders of the court, but the endeavor has been to state sufficient of the record to the end that the opinion may be understood. The record is incumbered with many papers which were perhaps unnecessary and might have been omitted, if the ordinary practice attending a bill of interpleader had been pursued. The complaint or bill of interpleader filed by plaintiff seems on its face to state sufficient for the purposes of the suit. Such a bill will lie where two or more persons claim the same thing or debt or duty from the complainant by different or separate interests, and he does not know to which of the claimants he ought of right to deliver the thing in his custody or render the debt or duty, and by reason thereof is in fear of damage or hurt from some of them, or, as defined by Lord Cottenham: "It is where the plaintiff says: 'I have a fund in my possession in which I claim no personal interest, and in which you, the defendants, set up conflicting claims. Pay me my costs, and I will bring the money into court.' " Beach, Mod.Eq.Prac. § 114; Hoggart v. Cutts, Craig & P. 204; Wing v. Spaulding (Vt.) 23 A. 615. The allegations such a bill should contain are, in purport: (1) That two or more persons have preferred claims against the complainant; (2) that they claim the same thing; (3) that the complainant has no beneficial interest in the thing claimed; and (4) that he cannot determine, without hazard to himself, to which of the several defendants the thing belongs. Atkinson v. Manks, 1 Cow. 703. Under the old equity practice it was usual to annex to the bill an affidavit of the plaintiff showing that there was no collusion between him and any of the defendants. Beach, Mod.Eq.Prac. § 145. But it is perhaps sufficient under our practice that the fact appear by appropriate allegations in the complaint. Jerome v. Jerome, 5 Conn. 352, and Nash v. Smith, 6 Conn. 421. The more orderly practice seems to be to first determine whether the interpleader will lie or not. If not, it is unnecessary to go further; but, if it will, then the plaintiff should be discharged from liability, with his costs, upon bringing the money or thing in dispute into court; and the suit should thereafter proceed upon issues properly joined between the defendants. The plaintiff cannot claim relief against any of the defendants, but only that he be protected against the claims of all, and when he has shown sufficient to entitle him to this he is entitled to his interpleader, which fact being determined by the order of the court, he is thenceforth out of the suit. St. Louis Life Ins. Co. v. Alliance Mut. Life Ins. Co., 23 Minn. 7; Cullen v. Dawson, 24 Minn. 66; First Nat. Bank v. West River R. Co., 46 Vt. 633; 2 Beach, Mod.Eq.Prac. § 637. If, however, at the hearing on the bill, it is made to appear that the defendants have by their several answers clearly and sufficiently presented the proper issues as between themselves, and that such issues are ripe for adjudication, the court may, at the time it determines the question of interpleader upon the complaint and issues thereto tendered, also decide the questions at issue between the several defenda...