Stewart v. Sample

• Decision Date: 26 February 1910
• Citation: 168 Ala. 270,53 So. 182
• Parties: STEWART v. SAMPLE.
• Court: Alabama Supreme Court

53 So. 182

168 Ala. 270

STEWART v. SAMPLE.

Supreme Court of Alabama

February 26, 1910

Rehearing Denied June 30, 1910.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by R. H. Sample against W. H. Drinkard, in which S.E Stewart, as administrator of C. G. Harris, was brought in as defendant by statutory interpleader. Judgment for plaintiff and defendant Stewart appeals. Reversed and remanded.

Brown & Kyle and D. F. Greene, for appellant.

John R. Sample and Wert & Lynne, for appellee.

SIMPSON J.

The suit was brought by the appellee against W. H. Drinkard. The basis of the various counts of the complaint was an order from C. G. Harris (appellant's intestate), who was tax assessor, dated January 5, 1906, on said Drinkard, who was tax collector, requesting him to pay plaintiff $575, in which order it was stated "The intention is for you to pay this note out of the first money collected of mine," and said Drinkard wrote thereon, "Jan. 16, 1906, I agree to pay this as directed," signing his name. The complaint alleges that said C. G. Harris was tax assessor of Morgan county, and had made the assessment of taxes for the year 1906, and was entitled to his commissions for said work, which were due him out of the first taxes collected in October, 1906; that said defendant was tax collector of said county, and was due said Harris his commissions on or before November 1, 1906, to an amount far exceeding the amount of said order, also that the defendant has collected said money, etc. After the filing of the complaint, and before any plea had been filed, to wit, on October 12, 1907, said defendant filed his affidavit, under the statute, praying that the appellant, as administrator, be notified to come in and defend the action, and that defendant deposited the money ($620) in court. The appellant (substituted defendant) came in, and in the writing filed by him claims that the money deposited by the defendant belongs to the estate of his decedent, by reason of the fact that the order drawn by said decedent was an attempt to assign his fees, as tax assessor, then unearned; that this was known to the plaintiff and defendant, at the time of drawing the order, and the same is contrary to public policy and void. It also sets up the fact that the claim is usurious, in that it was for $500 in money borrowed, the additional $75 being usurious.

Section 6050 of the Code of 1907 is a short method for accomplishing the purposes of a bill of interpleader in equity, and applies only when the facts would authorize resort to a bill of interpleader in equity. Nelson v. Goree, 34 Ala. 565; Johnson v. Maxey, 43 Ala. 521, 541; Jackson v. Jackson, 84 Ala. 343, 4 So. 174; Jackson v. Jackson, 91 Ala. 292, 10 So. 31; Crass v. M. & C. R., 96 Ala. 447, 11 So. 480.

The essential conditions of a bill of interpleader are: "(1) The same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded; (2) all adverse titles or claims must be dependent, or be derived from a common source; (3) the person asking relief--the plaintiff--must not have nor claim any interest in the subject-matter; (4) he must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder." 5 Pomeroy's Eq. Jur. (1 Eq. Remedies) § 43. In this case there can be no question that both parties are claiming the same debt or duty, to wit, the money, in the hands of Drinkard, which he had collected for Harris. The adverse claims, also, are dependent upon or derived from a common source, to wit, the obligation of Drinkard to pay this money over to the party to whom it belongs. It is true the obligation to the plaintiff is by written contract, and that to the substituted defendant is implied, but they are both dependent upon the fact that Drinkard has collected the money of Harris, and is under contract, either expressed or implied, to pay it over. The person asking the relief, to wit, the defendant, Drinkard, has not incurred any independent liability. His acceptance did not bind him absolutely to pay the money, but only to pay it over, as the money of Harris, when collected; nor does he claim any interest in or right to the money, but is a mere stakeholder, ready to pay the money to whichever party is entitled to it, and has paid it into court. So this is a proper case for interpleader. This court has held that it is error for a court of equity to require parties to interplead before the filing of answer, or a decree pro confesso ( Crass v. M. & C. R., 96 Ala. 447, 454, 11 So. 480), but it will be noticed that section 6050 departs from that rule, and, in this statutory proceeding, requires the affidavit to be made "at any time before issue joined."

Evidently objection may be made to the granting of the order of interpleader at the time the motion is acted on. When the affidavit is filed, if it shows, upon its face, that it is not a case for interpleader, the plaintiff may present to the court any reasons which he may desire to present, to show to the court that it is not a proper case for interpleader, and, if the court so holds, it should refuse then to grant the order, notifying the substituted defendant to come in and propound his claim, but, inasmuch as the statute does not require the defendant to set out the facts, on which he claims the right to interpleader, the plaintiff must have an opportunity to present the point that it is not a case for interpleader, when the facts are made known. Therefore this court properly held that the plaintiff could demur to the claim propounded by the substituted defendant. Coleman v. Chambers, 127 Ala. 615, 620, 29 So. 58.

The appellant objects to the statement in the case just cited "that when the requisite affidavit has been made, accompanied with the proper prayer for order for the claimant to come in and defend, and the money deposited in court, and the claimant voluntarily appears to defend, as was the case here, the court was bound to make the order of substitution of the new, and discharge of the old defendant." He invokes the analogy of a bill for interpleader in equity, to wit, that the time to demur is before the order of interpleader is made. That might be highly proper in a proceeding in equity, wherein the complainant in his bill sets out a statement of the facts, on which the right to interpleader is claimed, so that the plaintiff then has the information upon which to base his demurrer, but, as before stated, the statute authorizes the affidavit to be made at any time before issue joined, and proceeds to state that "after such notice is given the court may make an order that such person be substituted as a party to the suit in place of the defendant," etc. Whether "may" means "must," or not, the court is certainly authorized by the terms of the statute to make the order as soon as the notice is given. Under the practice, as above suggested, if it be a case in which the original defendant has bound himself independently, that fact is necessarily known to the plaintiff, and he can offer his objection to the order before it is made. If that be not the case, then it becomes a mere matter between the plaintiff and the substituted defendant, the original defendant having confessed his liability to pay the money and deposited it in court, and it is proper that when the substituted defendant propounds his claim, the plaintiff may meet it, by demurrer or any other pleading.

We do not understand the case of Coleman v. Chambers to hold that, in every case the court must make the order as soon as the affidavit is filed, but only that, in that case, in which the plaintiff had not interposed any objection, the order must be made. If the demurrer is sustained on the ground that it is not a proper case for interpleader, then it necessarily results that the substituted defendant has no right to claim the funds, and the judgment would be for the plaintiff. If, on the other hand, it is shown to be a proper case for interpleader, and the substituted defendant shows that the funds belong to him, the judgment will be for the substituted defendant.

In the case of Nelson v. Goree's Adm'r, 34 Ala. 565, 578, it is stated that the substituted defendant was brought in, without objection on the part of the plaintiff, and the court says: "Notwithstanding the order of substitution in this case was irregular, and should not have been granted, the appellee (who was the plaintiff), by failing to object to the action of the court, has forfeited all right to claim any advantage in consequence of the order. The cases cited above show that the proper mode and time for raising the question of the right to substitute a new defendant, is when the motion is acted on. It is not a question of what defense the substituted defendant can make, after he is, by the order of the court, admitted into the place of the original defendant; but a question of right in the original defendant to have him substituted. When he becomes the defendant, he defends, not on the title of the original defendant, but on his own title."

In that case, and in the New York case therein followed, the ground upon which it was contended that the substitution should not have been made was that the original defendants were personally bound to the plaintiff, to account for the proceeds of cotton which had been shipped to them by the plaintiff, and the decision of the court is in accordance with the practice above suggested, to wit, that the plaintiff should have made that objection before the order of substitution was made.

In the case of Johnson v. Maxey, for Use, etc., 43 Ala 521, the suit was brought by Maxey against the railroad...