Provident Savings & Loan Ass'n v. Booth
| Decision Date | 12 July 1940 |
| Docket Number | 30824. |
| Citation | 293 N.W. 293,138 Neb. 424 |
| Parties | PROVIDENT SAVINGS & LOAN ASS'N v. BOOTH ET AL. |
| Court | Nebraska Supreme Court |
Syllabus bye the Court.
1. In a bill of interpleader, a defendant is chargeable with notice of a cross-petition filed against him by another defendant before the answer day designated in the served summons issued on the petition of the stakeholder, and such notice may prevent the statute of limitations from running against the claim pleaded by the cross-petitioner.
2. A corporation cannot legally escape liability for damages caused through its active fraud by merely pleading and proving former dissolution and subsequent incorporation where its own pleadings in the same case show that it participated in the fraudulent transactions and claimed the fruits thereof after reorganization.
3. " A party may at any and all times invoke the language of his opponent's pleading, on which a case is being tried, on a particular issue, as rendering certain facts indisputable; and in doing this he is neither required nor allowed to offer such pleading in evidence in the ordinary manner." Bonacci v. Cerra, 134 Neb. 476, 279 N.W. 173.
4. A bill of interpleader is an equitable remedy in harmony with statutory provisions, whereby a disinterested stakeholder in possession of a fund or other property claimed by each of rival defendants may require them to litigate among themselves the issue of ownership without embroiling him. Comp.St.1929, §§ 20-325 to 20-329.
5. The statutory rule that " the court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others" may apply to issues in a bill of interpleader. Comp.St. 1929, § 20-323.
6. A motion by a defendant in a bill of interpleader to strike from the petition of another defendant a plea for the recovery of damages resulting from fraud, held properly overruled under the circumstances narrated in the opinion.
7. " When a court of equity has acquired jurisdiction of a cause for any purpose, it may retain it for all purposes, and proceed to a determination of all of the matters put in issue by the pleadings." Disher v. Disher, 45 Neb 100, 63 N.W. 368; Leis v. Beckmark, 133 Neb. 467 275 N.W. 679.
Appeal from District Court, Lancaster County; Broady, Judge.
Suit in equity in the form of a bill of interpleader by the Provident Savings & Loan Association against Edwin W. Booth, William L. Walker, trustee of the bankrupt estate of Edwin W. Booth, and the Securities Investment Corporation, wherein Edwin W. Booth filed a cross-petition. William L. Walker, trustee of the bankrupt estate of Edwin W. Booth, was substituted for Edwin W. Booth. From a judgment in favor of William L. Walker, trustee of the bankrupt estate of Edwin W. Booth, the Securities Investment Corporation appeals.
Judgment affirmed.
Francis P. Matthews and Wm. P. Kelley, both of Omaha, for appellant.
Phil L. Sidles, of Lincoln, for Provident Savings & Loan Ass'n.
Jay O. Rodgers, Walker & McArthur, and Robert S. Stauffer, all of Lincoln, for Booth and others.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ.
This is a suit in equity in the form of a bill of interpleader. Provident Savings & Loan Association, plaintiff, alleges it has a credit of $274.19 on shares therein which it desires to pay into court for the owner thereof; that Edwin W. Booth and Securities Investment Corporation, defendants, are rival claimants to the credit; that plaintiff is unable to determine which of them has the valid claim; that plaintiff is a mere stakeholder without any interest in the fund, except the duty to turn it over to the owner; that it desires to avoid a multiplicity of suits and to be relieved of responsibility for the fund by paying it into court where defendants may be required to appear, plead and litigate their respective claims to a final determination.
Defendant Booth appeared and in his answer admitted the allegations of plaintiff's petition and alleged the Securities Investment Corporation had no interest in the credit at stake for reasons pleaded in his cross-petition which contains the following pleas: July 30, 1936, the Securities Investment Corporation was dissolved and on August 3, 1936, the Securities Investment Corporation, defendant, was incorporated by the same persons who owned and controlled the dissolved corporation; that such corporate action was taken for the purpose of defrauding Booth; that the new corporation succeeded to the property and rights of the old and assumed its liabilities and is in fact the same; that Booth purchased from the corporation, June 1, 1933, a tractor and trailer for $2,500 on false representations of the seller, with the right to return them if unsatisfactory and not as represented; that the tractor and trailer were not as represented and were tendered back, accepted and resold; that Booth paid on the purchase price $200 and assigned to the seller deposits of approximately $600 in building and loan associations--funds turned over to the seller. There is a prayer by defendant Booth for judgment for $800 with interest against the Securities Investment Cor poration, defendant, successor to the Securities Investment Corporation, and for an order on the clerk of the district court to turn over to Booth the fund paid into court.
The Securities Investment Corporation, defendant, answering plaintiff's petition, alleged that Booth purchased from the Motor Exchange and Refinance Company of Omaha, May 31, 1933, the tractor and trailer and encumbered them by chattel mortgage for $2,691 to secure the unpaid purchase price and, as additional security, assigned to the Securities Investment Corporation the deposit with plaintiff; that he failed to pay the chattel mortgage note and that there is due thereon a sum in excess of the fund mentioned in plaintiff's petition; that Booth's cause of action for fraud is barred by the statute of limitations, and prayed that the corporation be adjudged the owner of the credit and plaintiff ordered to make payment accordingly.
William L. Walker, trustee in bankruptcy, was substituted for Booth as a party defendant and interposed...
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...2, 3, and 7, above.6 See American Sur. Co. v. Calcasieu Oil Co., D.C., 3 F.Supp. 939, 940-941 (W.D.La.); Provident Sav. & Loan Ass'n v. Booth, 138 Neb. 424, 430, 293 N.W. 293; State Bank v. Wilbur Mission Church, 44 Wash.2d 80, 94, 265 P.2d 821; Pomeroy, Equity Jurisprudence (5th ed.) §§ 23......
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...additional maters in controversy between the parties. See City of Seattle v. Turner, 29 Wash. 515, 69 P. 1083; Provident Savings & Loan Ass'n v. Booth, 138 Neb. 424, 293 N.W. 293. Here, however, we have held that it is permissible to try title to corporate office in an action other than quo......
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...of the property who is and has been perfectly indifferent and completely impartial between them. See, also, Provident Savings & Loan Ass'n v. Booth, 138 Neb. 424, 293 N.W. 293 (1940). Regardless of what the plaintiffs may have alleged, this was not an interpleader and was only an action for......
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Noble v. City of Lincoln, 33490
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