Peavy Lumber Co. v. Murchison

• Decision Date: 25 May 1961
• Docket Number: 3 Div. 919
• Citation: 130 So.2d 338,272 Ala. 251
• Parties: PEAVY LUMBER COMPANY et al. v. O. E. MURCHISON et al.
• Court: Alabama Supreme Court

Page 338

130 So.2d 338

272 Ala. 251

PEAVY LUMBER COMPANY et al. v. O. E. MURCHISON et al.

3 Div. 919.

Supreme Court of Alabama.

May 25, 1961.

Woodley C. Campbell and Azar & Campbell, Montgomery, for Peavey Lumber co.

A. Pope Gordon, Montgomery, for Wilson Bros.

Walter J. Knabe and M. R. Nachman, Jr., Montgomery, for appellee Murchison.

Rushton, Stakely & Johnston, Montgomery, for Cox Electric Co.

SIMPSON, Justice.

This is an appeal from the Circuit Court of Montgomery County, In Equity, where appellee, O. E. Murchison, filed a bill of complaint described as being a bill of interpleader or bill in the nature of a bill of interpleader. Named as respondents are Jack Cox, d/b/a Cox Electric Company, to be referred to hereafter as Cox Electric Company; H. O. Peavy and Peavy Lumber Company, hereafter referred to as Peavy Lumber Company; F. B. Wilson and Wilson Brothers Tile Company, to be referred to as Wilson Brothers Tile Company; L. C. Shepherd and M. C. Shepherd, d/b/a Shepherd Brothers Plastering Company, to be referred to as Shepherd Brothers Plastering Company; and R. N. Dalrymple.

It is alleged in the bill of complaint that complainant appellee here, entered into a construction contract with Dalrymple and that complainant is obligated to said respondent in the sum of $988; that complainant is willing to pay the indebtedness to the party or parties entitled thereto but a controversy has arisen as to who is entitled to receive the fund, for each of the respondents has notified complainant claiming such fund. Complainant deposited the sum of $988 into the registry of the court.

After the bill of complaint was filed, Cox Electric Company filed a pleading labeled 'Answer and Claim' that contained a general prayer of relief, wherein said respondent disclaimed any specific interest in the amount interpleaded, but that respondent showed he had obtained a judgment against R. N. Dalrymple which judgment had been duly recorded and the satisfaction of said judgment was not dependent upon respondent establishing a claim to the interpleaded amount.

The amount of $788.94 was the claim propounded to the fund by respondent Peavy Lumber Company. With its claim said respondent averred that on April 23, 1959 notice was given complainant that a materialmen's lien was claimed and such notice was filed on April 24, 1959. The claim of $260 was propounded and filed by respondent Wilson Brothers Tile Company, and this claim showed unto the court that notification of a materialmen's lien by respondent against complainant was served on May 23, 1959 and filed in the office of the Judge of Probate of Montgomery County within four months after furnishing said materials. Respondent Shepherd Brothers Plastering Company filed their answer in which the sum of $90 was claimed to be due to them from complainant or Dalrymple.

The cause was submitted for final decree upon the pleadings and complainant's exhibit, a certificate of the judgment obtained by respondent Cox Electric Company against respondent Dalrymple for the sum of $345.29 and $19 costs. From the final decree, it appears that the court found that the recorded judgment of April 20, 1953 in favor of Cox Electric Company was a judgment lien in existence prior to the commencement of the work for which materials and labor were furnished by the other respondents and said lien attached to the money subsequently acquired by respondent Dalrymple; that respondent Cox Electric Company had a claim in and to the amount interpleaded prior to the claims of respondents. Therefore, the court decreed that the following disbursements be made out of the sum of $988: (1) To Cox Electric Company, $504.94; (2) To complainant, $125 as reasonable attorney's fees; (3) The sum of $66.28 as court costs; (4) The balance of said sum of $988 in the following percentages, said percentages representing their pro rata share of the balance of said fund as lien-holders who stand on equal footing with one another: To Peavy Lumber Company, 69% ($208.25); to Wilson Brothers Tile Company, 23% ($69.41); and to Shepherd Brothers Plastering Company, 8% ($24.14). Complainant was discharged and fully released from any liability to any of the respondents, and an injunction issued preventing any suit or claim in law or equity for any obligation to Dalrymple.

We are of the opinion that a proper case of interpleader was made out, and there was no error in the trial court's allowing attorney's fees to appellee as claimed in the bill of complaint. Johnson v. Malone, 252 Ala. 609, 42 So.2d 505; Loop National Bank of Mobile v. Cox, 261 Ala. 148, 73 So.2d 364; Equity Rule 36, code 1940, Title 7, Appendix.

Admittedly, the certificate of judgment was issued and registered in compliance with §§ 584 and 585 of Title 7, Code of 1940, which had the effect of an execution in the hands of the sheriff as an instrumentality of preserving a lien in favor of the judgment creditor on all property of the judgment debtor subject to levy...