van Winkle v. Owen

• Decision Date: 01 April 1896
• Citation: 54 N.J.E. 253,34 A. 400
• Parties: VAN WINKLE v. OWEN.
• Court: New Jersey Court of Chancery

34 A. 400

54 N.J.E. 253

VAN WINKLE

v. OWEN.

Court of Chancery of New Jersey.

April 1, 1896.

(Syllabus by the Court)

Bill by John S. Van Winkle against John Owen, administrator. Heard on demurrer. Overruled.

The case as made by the bill and admitted by the demurrer is as follows: Richard Owen recovered judgment against the complainant in the city court of New York City on the 13th of June, 1891, for $1,735.28 damages, and $182.07 costs. Richard died intestate in 1892, and in January, 1893, letters of administration upon his estate were granted by the surrogate's court of New York to the defendant John Owen. In 1895, John Owen, as administrator, commenced an action founded on that judgment against complainant, in the circuit court of the county of Hudson; and judgment by default was rendered therein on the 3d of April, 1895, for $2,355.39, being the amount of debt costs, and interest due on the New York judgment, and $31.47 costs. The attorney of record and counsel for Richard Owen in the suit in the court of New York was one Henry Wehle, who died after the recovery of the judgment, testate of a will by which the defendants Charles and Alexander Wehle and Gustave Behr were executors; and they, as such, after the entry of the judgment in the Hudson circuit court, notified complainant that they claimed a lien upon the judgment entered in the New York court, and on any moneys to be paid thereon for fees, costs, and expenses due to Henry Wehle, the attorney, in his lifetime, for his services, fees, costs, and expenses in and about the prosecution and recovery of the said judgment, amounting to $1, 182.07, and the further sum of $1,890.87 as the balance due from Richard Owen to Henry Wehle for his services rendered in other suits and matters; and that, by an agreement between Richard Owen and Henry Wehle, Richard Owen agreed that Wehle should have and hold said judgment rendered against the complainant as security for his said debt, and that any moneys derived therefrom should be applied to the payment of all the moneys due from Richard Owen to Wehle. In point of fact, Wehle did conduct the suit which resulted in the judgment in favor of Richard Owen against the complainant, and, by virtue of the laws of the state of New York, Wehle had a lien upon that judgment, or any moneys to be derived therefrom, for the payment of the sum of $1,182.07, and he also had a lien for the further sum of $1,890.87, by virtue of the contract made between Henry Wehle and Richard Owen above set forth; and those moneys are still due from the estate of Richard Owen to the estate of Wehle. The defendant Smith claims that the executors of Wehle have assigned to him their debt against Owen, and their lien upon the judgment. The judgment in the city court of New York remains unsatisfied of record. Richard Owen, in his lifetime, obtained and took into his possession certain deeds, notes, and other papers not enumerated, belonging to the complainant, and evidences of indebtedness due and owing to complainant, and other papers of value belonging to complainant; and Richard Owen, in his lifetime, or the defendant Owen, his administrator, since his death, collected and realized out of the documents so taken possession of a part (but what part or how much does not appear) of the moneys due from complainant to them, and no credit was given therefor in the judgment rendered in the Hudson circuit court; and the complainant had no notice prior to the rendering of such judgment that any moneys were realized by Richard Owen or the defendants, as his administrators, upon any of the property of the complainant so in their possession. The executors of Henry Wehle, and the said Joseph R. Smith, claiming to be their assignee, are. all residents of the state of New York, and refuse to allow the judgment rendered in the city court of New York to be satisfied or discharged until their said lien has been fully paid and discharged; and complainant is unable, under the laws of the state of New York, to obtain such satisfaction, and he believes and charges that he will be liable to pay the same even if he should pay and satisfy the judgment in the Hudson circuit. Complainant, after notice of the facts hereinbefore set forth, applied to the defendant John Owen, and expressed himself as ready ana willing to pay and satisfy the amount due on the Hudson circuit court judgment upon a return of his deeds and papers taken by Richard Owen, and upon the satisfaction of the lien or claim of the executors of Wehle, and the formal satisfaction of record of the New York judgment, and upon being released from the claim of Wehle's executors, which offer was declined by the defendant, and execution issued on the judgment, and a levy was made upon property of the complainant. Complainant tenders himself ready and willing to pay whatever is actually due upon the judgment, after deducting and allowing the credit for such moneys as may have been realized by Richard Owen in his lifetime, or the defendant John Owen, as administrator, out of the complainant's property, in the city of New York, upon being relieved of the claims of the executors of Wehle, deceased, and of their alleged assignee, Smith, and having the judgment there against him satisfied and discharged of record. The prayer is that there may be an interpleader between the executors of Wehle and Smith, their alleged assignee, on the one part, and defendant Owen, as administrator, on the other; that an account may be had of the moneys collected by Richard Owen in his lifetime, or by John Owen, as administrator, out of the property of the complainant, and the same credited on the judgment; and that the complainant shall be released and discharged from the claim of the executors of Wehle and Smith, and the judgment recovered in the city court of New York satisfied and discharged of record, and the deeds and other papers in the hands of Richard Owen at the time of his death may be delivered to him. No affidavit of noncollusion and disinterestedness was annexed to the bill.

F. W. Ward, for complainant.

J. Frank Fort and George Biller, for defendant.

PITNEY, V. C. (after stating the facts). In answer to the objection taken by defendant that the bill is demurrable for want of the usual affidavit of noncollusion and disinterestedness required in a bill of interpleader, complainant answers that this is not a pure bill of interpleader, but is no more than a bill in the nature of a bill of interpleader, in that it contains other grounds for coming into a court of equity, and asks other relief than that of a pure interpleader; and, therefore, that such affidavit is neither proper nor necessary. In this, I think, the complainant is right. The formal affidavit in question is not a statutory requisite, nor required by any standing rule of the court, but has been required by the courts to prevent the abuse of a bill of interpleader being used by a stakeholder in the interest of one or the other of the parties claiming the fund, who might for any reason prefer to have his claim passed upon by a court of equity rather than by a court of law. For myself, I am unable to perceive any principle upon which the absence of the formal affidavit can be held cause for demurrer, if the bill itself contains the proper averment of fact, which the demurrer must admit. But the rule seems to be established, as contended for by the defendant, that the absence of the affidavit is a cause of demurrer. In the case in hand, however, there is in the bill no allegation of indifference or noncollusion, and hence it fails as a pure interpleader. A bill in the nature of an interpleader is one in which the complainant asks some relief over and above a mere injunction against suits by the contesting parties, and states facts which entitle him to such relief independent of the fact of the adverse claims of the several defendants. The books furnish numerous instances of such. 2 Daniell, Ch. Prac. (5th Ed.) p. 1571, and cases cited; Story, Eq. Pl. (9th Ed.) § 297b, and cases cited. In our own state we have several instances. Aleck v. Jackson, 49 N. J. Eq. 507, 23 Atl. 760, and Illingworth v. Rowe, 52 N. J. Eq. 360, 28 Atl. 456, are samples; and the opinion in the latter case refers to other cases illustrating the distinction between pure bills of interpleader and bills in the nature of interpleader. If the complainant's bill duly states facts which entitle him to relief independent of its interpleader aspect, then, clearly, no affidavit of indifference is necessary or proper. Such is the rule stated by Mr. Daniell (2 Daniell, Ch. Prac. [5th Ed.] p. 1563, citing Vyvyan v Vyvyan, 30 Beav. 65); and this must be so upon principle.

This brings us to the merits of the bill. The complainant relies upon several distinct equities, each of which is met by the defendant in argument. First, he alleges, and the demurrer admits, that the...