Simmons Hardware Company v. Loewen Brothers
| Decision Date | 02 June 1902 |
| Citation | 68 S.W. 947,95 Mo.App. 122 |
| Parties | SIMMONS HARDWARE COMPANY, Appellant, v. LOEWEN BROTHERS, Defendants; EUGENE BATAVIA, Interpleader, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John W. Henry, Judge.
REVERSED.
Judgment reversed.
Joseph A. Guthrie and James E. Goodrich for appellant.
(1) Under the evidence submitted by plaintiff, the case should have gone to the jury; the rule being well settled that if there is any evidence tending to prove the issues, the case must go to the jury. Batavia v. Wallace, 42 C. C. A 310 (102 F. 240), where on page 314 the exact point is decided on the same facts as in this case. Groll v Tower, 85 Mo. 249; Moody v. Deutsch, 85 Mo 237; Baum v. Fryrear, 85 Mo. 151. (2) An interplea in attachment proceedings is purely statutory, must be governed entirely by the statute, and is to be strictly construed. Grocer Co. v. Goetz, 57 Mo.App. 8; State ex rel. v. Barker, 26 Mo.App. 487; Bank v. Tracey, 141 Mo. 252. (3) The statutory interplea in an attachment is an action of replevin engrafted upon the suit by attachment, and will not lie where replevin will not. It is an action in rem. State ex rel. v. Barker, 26 Mo.App. 487; Burgert v. Borchert, 59 Mo. 80. (4) An interplea can not be maintained for attached property, unless the interpleader has the general title to, or a special interest in, the property, and is entitled to the possession of it, when interplea is filed; the ownership and right to the possession at the time of the attachment of the property will not suffice. Kirschenschlager v. Company, 58 Mo.App. 165, 169.
I. J. Ringolsky and Elijah Robinson for respondent.
(1) Appellants insist that as Batavia filed his interplea in this case after the sale of the goods by him as trustee, that he is not entitled to recover and that a peremptory instruction should have been given for the plaintiff. The appellant contends that an interpleader's rights are to be judged, not by his rights of ownership and possession when the goods were attached, but entirely by his rights of ownership and possession when the interplea was filed. And to sustain his contention cites Kirschenschlager v. Co., 58 Mo.App. 165; Plano Mfg. Co. v. Cunningham, 73 Mo.App. 376. This exact question was before this court and this court held that the issue to be tried under an interplea is the question of the ownership and possession at the time of the attachment. This case is directly in point and applicable to the facts in the case at bar. Mfg. Co. v. Cunningham, 73 Mo.App. 376. (2) This decision, when carefully considered with reference to the facts in the case then decided, properly declares the law. The language used by the court in that case must not be accepted as declaring general principles of law, but as merely declaring the law applicable to the facts in that particular case. (3) Again, our statutes contemplate that goods attached belonging to a third party can be retaken from the sheriff by a forthcoming bond and sold immediately, if the party giving the forthcoming bond desires to do so. (4) It is held that goods attached always remain thereafter in custodia legis, until the attachment is dissolved. And that a person giving a forthcoming bond and retaking the property thereby becomes the bailee for the sheriff in holding the attached goods. And that such a person can not sell or mortgage the property. Fleming v. Clark, 22 Mo.App. 218; Hudson v. Lamar, 74 Mo.App. 238.
--Plaintiffs instituted this suit by attachment on an account against defendants, on January 5, 1897. The interpleader filed his interplea claiming the property as trustee in a deed of trust conveying the same to secure some preferred creditors. If it be conceded that the defendants intended to defraud other creditors by giving the deed of trust, yet the further question presented was whether the interpleader participated in such fraudulent design. The trial court gave a peremptory instruction to find for interpleader, and plaintiffs have appealed.
Shortly before plaintiffs instituted their attachment, the property had been attached in a suit in the Federal court for the western district of Missouri, and was in possession of the marshal. The levy of plaintiffs' attachment was, therefore, made subject to that of the Federal marshal. Afterwards, interpleader gave a forthcoming bond in the case in the Federal court (sec. 389, R. S. 1899) and received the property from the Federal marshal, which he thereafter sold, realizing money sufficient to pay the claims secured by the deed aforesaid in which he was trustee. He then (after so selling and delivering the property) filed the interplea in this case, now the subject of this appeal.
The point is made by plaintiffs that an interpleader's interplea is like a plaintiff's suit in replevin, and that he must have a right to the possession of the property at the time he filed the interplea, and as this interpleader had sold the property he claims to be entitled to, and has paid off the debts which were the foundation of his trusteeship, he can not maintain the interplea. We have heretofore held that if the attached property is sold, and the proceeds held by the sheriff (as for instance, in cases of perishable property), the interplea may still be maintained, and that the issue for trial is whether the property sold was interpleader's....
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