78 W. Va. 448 | W. Va. | 1916
Lead Opinion
George E. Amos, sheriff of Marion county, filed this bill of interpleader against .Pasquale Angotti and others, praying that A. V. Lynch and Michael Powell be required to litigate and have determined which of them is entitled to a certain fund, which said sheriff admitted to be in his hands and brought into court. Lynch and Powell were each proceeding by separate actions at law against plaintiff to recover the fund, and, on motion of plaintiff, they were enjoined from prosecuting those suits. Lynch’s demurrer to the bill was overruled, and he and Powell filed separate answers, to .which plaintiff replied generally. No depositions were taken. Lynch also moved to dissolve the injunction, and the . cause was heard, on the 20th of June, 1914, on the pleadings, exhibits therewith filed and the motion .to dissolve the injunction and a decree entered holding the bill presented a proper case for interpleader, overruling the motion to dissolve the injunction and making it perpetual, and decreeing the fund to belong to defendant Michael Powell, and directing the general receiver to pay over to him the sum of $206.37, that being the amount, in controversy, less the sheriff’s commissions. The court also
The bill alleged that, on the 10th of May, 1909, plaintiff, by his deputy M. W. Harris, received from the clerk of the Intermediate Court of Marion county, an execution in favor of Alva E. Watkins against Pasquale Angotti and Frank Bo-relli, returnable to first Monday in June, 1909, for $142.02, with interest thereon from November 23, 1906, until paid, and $88.50 costs; that on the 26th of May, 1909, he levied the same upon a lot of goods, the property of Frank Borelli; that on the 3rd of June, 1909, Angotti and Borelli caused notice to be served on plaintiff, that they would move the court, on the first day of the August term, 1909, to quash said execution, and on the 14th of June the judge made an order in vacation directing plaintiff to stay proceedings on said execution, until the motion could be heard and disposed of; that at the August term, the motion was heard and overruled, but that the clerk was directed to re-tax the costs, which he did, thereby reducing the taxation from $88.50 to $38.65; that on the 3rd of January, 1910, “the property of said Frank Borel-li, being still held under said levy as aforesaid, ’ ’ the said An-gotti and Borelli, through their attorney, requested plaintiff not to take possession nor make sale thereof, stating they desired to apply for an appeal from the order of the intermediate court overruling their motion to quash the execution; that defendant, A. V. Lynch, also joined in said request, stating that, in ease plaintiff would release the levy and not take possession of or sell the goods, he would give said sheriff his check for $217.69, that being the amount of the execution and costs, and “thereupon the said sheriff, through M. W. Harris his deputy, accepted the said check of the said A. V. Lynch, for the said sum of $217.69, and pursuant to said arrangement, did not take possession of the said goods, nor make sale, but released the said goods from said levy.” On the 27th of January, 1910, plaintiff, by another of his deputies, Z. F. Davis, made the following return on said execution: “Money made and paid to Michael Powell, attorney for the within named Alva E. Watkins. The said Property released and delivered to the said Frank Borelli January 27th, 1910.” Plaintiff al
To entitle a person to maintain a bill of interpleader, he must occupy the position of a stakeholder, where a recovery against him by one claimant might not protect him against recovery by the other. Hechmer v. Gilligan, 28 W. Va. 750. He must be wholly impartial toward the respective claimants; his position must be one of indifference as respects the issue between them. Shaw v. Coster et al., 8 Paige (N. Y.) 339; 5 Pomeroy’s Bq. Jur., sec. 48; and Sands’ Suit in Eq., 668. If the controversy among claimants is occasioned by plaintiff’s own conduct, he can not maintain interpleader, for in such case his impulse would be to exonerate himself and his position could not be impartial. Stephenson and Coon v. Bur-
It appears from the bill that Lynch’s right to the fund depends upon some kind of an agreement, made on the 3rd of January, 1910, between himself and plaintiff’s deputy, M. W. Harris, but what that agreement was is not fully stated. The averments concerning it show that an issue will be. raised between plaintiff and Lynch respecting it, in fact it is averred that a suit is already brought and now pending. It is not averred that the check was given in payment of the execution; if it had been so intended plaintiff would hardly have requested Powell to return the money, ’ after he had' collected the check and turned the money over to him. Plaintiff can not shift over to Powell the duty of litigating that issue; when his deputy is the one who caused it. The rights of the two claimants are wholly foreign to each other. Lynch’s claim arises out of an agreement with one of plaintiff’s deputies, while Powell’s claim is by virtue of an alleged interest in the execution. Plaintiff, bjr his deputy, knows as well as Lynch does, what title the latter has to the fund, and he can not avoid the responsibility of deciding it, because the conduct of his deputy occasioned it. His remedy at law to determine that issue is full, adequate and complete. Plaintiff is vitally interested in seeing Lynch’s claim defeated. Because, if Lynch should prevail, he is not relieved from liability to Powell, who was no party to the arrangement whereby the goods of Borelli were released from the levy, and hence he does not occupy an impartial position in respect of the two claimants. It is not averred that the check was given in payment of the execution, but only that it was for the purpose of preventing Borelli’s goods from being sold. If the sheriff assented to that arrangement, and thereby suffered the goods to get out of his control, it is' a matter between himself and Lynch alone, depending on their persona] contract, which a court of law is fully compe
The decree will, therefore, be reversed, the injunction dissolved and the bill dismissed.
Reversed and bill dismissed.
Dissenting Opinion
(dissenting):
I cannot fully concur in the opinion of my associates in this ease. It may be true that, the allegations of the bill are not sufficient to entitle plaintiff to the relief sought, but in my opinion sufficient appears in the case to show that the plaintiff is entitled to relief if the facts were fully pleaded. This, I think, may be done by an amendment without departure from the original bill. In my opinion the bill should not now be dismissed, but the plaintiff should have leave to amend it in the Intermediate Court if he desires.