Swift & Co. v. Russell

• Decision Date: 16 October 1899
• Docket Number: 1,234.
• Citation: 97 F. 443
• Parties: SWIFT & CO. v. RUSSELL.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F. 443

SWIFT & CO. v. RUSSELL.

No. 1,234.

United States Court of Appeals, Eighth Circuit.

October 16, 1899

Harrison O. Shepard, for plaintiff in error.

W. E Rogers (W. L. Stephens, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

In an action in the United States court in the Indian Territory which the plaintiff in error, Swift & Co., a corporation, had brought against one Guy, and in which the plaintiff had caused a writ of attachment to be levied upon certain property, the defendant in error, G. S. Russell, filed an interplea, in which he claimed the attached property as its owner. The plaintiff denied his claim, and at the trial of the issue between the plaintiff and the interpleader the court permitted the latter to prove and to recover a judgment for the value of the attached property which had been previously sold by the marshal. This judgment has been affirmed by the United States court of appeals for the Indian Territory, and the question which the case presents here is whether or not an interpleader in an attachment suit under the statutes of Arkansas in force in the Indian Territory may prove, and, if successful, amy recover of the plaintiff in the attachment, the value of the attached property. The statutes under which this interplea is permitted and tried are section 356 and 358 of Mansfield's Digest of the Laws of Arkansas, and they read in this way:

'Sec 356. Any person may, before the sale of any attached property, or before the payment to the plaintiff of the proceeds thereof, or of any attached debt, present his complaint, verified by oath, to the court disputing the validity of the attachment, or stating a claim to the property, or an interest in or lien on it under any other attachment or otherwise, and setting forth the facts upon which such claim is founded, and his claim shall be investigated.'

'Sec. 358. The court may hear the proof, or may order a reference to a commissioner, or may impanel a jury to inquire into the facts. If it is found that the claimant has a title to, a lien on or any interest in such property, the court shall make such order as may be necessary to protect his rights. The cost of this proceeding shall be paid by either party at the discretion of the court.'

In the absence of the statutes, one whose property is attached under a writ against another has no right or remedy in the attachment suit. He may maintain an action against the marshal for the taking and conversion of his property, and he can recover in that action its value and any other damages he sustains from its seizure, but he cannot be heard in an action between others in which the writ of attachment is issued. Consequently the nature of the proceeding by interplea is fixed, and the extent of the remedy granted must be determined, by these sections of the statutes. When these are carefully read, the attention is sharply challenged by the facts that the interplea may be interposed before the sale of the attached property, or before its proceeds are paid over to the plaintiff, but not after such payment, that the claimant must set forth the facts on which his claim to the property or its proceeds is founded, but nothing more that the court may find whether or not the claimant has a title to, a lien upon, or an interest in the property, but nothing else; and that it may make such order as may be necessary to protect...