Atkinson v. Carter
74 S.W. 502
Mo. Ct. App.
1903
Check Treatment
BLAND, P. J.

It is contended by plaintiff that the answer is insufficient as a bill of interpleader; that it does not state facts sufficient to support the order and judgment of the court that plaintiff, Gregory et al., interplead for the fund.

It is well settled in this State that an interpleader may be made by answer. Davison v. Hough, 165 Mo. 561; Roselle v. Farmers’ Bank of Norborne, 119 Mo. 84; Sullivan v. Knights of Father Mathew, 73 Mo. App. (St. L.) 43. The ground of the jurisdiction (to inter-tain a bill of interpleader) is that “the party seeking the remedy is exposed to the hazard, vexation and expense of several actions at law for the same demand, while he is ready and willing to satisfy that demand in favor” of the claimant, who establishes his right thereto.” Pomeroy’s Eq. Jurisprudence, sec. 1320. * ‘It is not necessary, however, that all the claims should be legal; the remedy is granted when one of them is legal and the other equitable,” says the same author in section 1321. The same author at section 1326, says: “The party seeking the relief must have incurred no independent liability to either of the claimants. When the plaintiff (interpleader) is liable at all events to one of the defendants, whatever may be their own respective claims upon the subject matter as between themselves, he cannot call upon these defendants to interplead. He does not stand indifferent between the claimants, since one of them has a valid legal demand against him at all events. ’ ’

In Kvle v. Mary Lee Coal & Railway Co. et al., 112 Ala. 606, it is said the bill must show “that all the adverse titles or claims to the thing or debt, in reference to which the bill is filed, must be dependent, or be derived from a common source. ” “ The claims, too, should *484be specifically set forth, so that they may appear to be of the same nature and character, and the fit subject of a bill of interpleader.” Story, Eq. PL, sec. 293.

“In a bill of interpleader it is necessary to aver that the complainant has no interest in the subject-matter of the suit; he must admit title in the claimants and aver that he is indifferent between them,” says Beach on Modern Equity Practice, section 144. The same author in section 148, says that “in a bill of interpleader it is essential that the claims of the parties should be specifically set forth, so that they may appear to be of the same nature and character, and the fit subject of a bill of interpleader. ‘The complainant in an inter-pleading bill must show that he is ignorant of the rights of the respective parties, who are called upon by him to interplead; or that at least there is some doubt, in point of fact, to which claimant the debt or duty belongs.’ ”

The defendant’s interplea is meager in the statement of the facts and is otherwise faulty; but no objections were made to it in the court below and it seems to us, giving its allegations a liberal construction, they are sufficient to entitle the defendant to the relief he prays for. It alleges that plaintiff himself and James Beagles are defendants in an equity suit in the nature of a creditor’s bill brought by Mary Beagles and John Gregory, by which it is sought to subject the note in suit or its proceeds to judgments obtained by Gregory and Mary Beagles against John Beagles and that that suit is pending by appeal in the Supreme Court; that defendant owns the note, that it is past due and he is ready and anxious to pay it in discharge of his obligation; that lie has no interest in the controversy between the other parties to the equity suit.

Prom these allegations it is manifest that the defendant is in the predicament of having no defense to the note in suit, and yet if he suffers a judgment to go against him in favor of plaintiff, or make payment to *485plaintiff; that if it shall be determined in the equity suit that the note or proceeds are subject to payment of the Gregory and Beagles judgments, he would he compelled to pay these judgments. Under this state of facts a hill of interpleader unquestionably lies.

2. Plaintiff assigns as error the refusal of the court to permit him to dismiss his suit before it was submitted to the court. The right of a plaintiff to dismiss his suit or to take a nonsuit before final, submission is guaranteed by statute (sec. 632, R. S. 1899). This section has been before the Supreme Court on several occasions, when it was construed to give the plaintiff the right to dismiss his suit or take a nonsuit, notwithstanding the defendant had filed a counterclaim equal to or exceeding the demand of the plaintiff. Nordmanser v. Hitchcock, 40 Mo. 178; Fink v. Bruihl, 47 Mo. 173; Martin v. McLean, 49 Mo. 361.

In 1889 a new section (8172) was added to the chapter on “Set-off” by which it is provided that notwithstanding plaintiff might take a nonsuit or dismiss his suit before final submission, yet the defendant’s counterclaim or set-off should be proceeded with to final judgment. Pullis v. Pullis, 157 Mo. l. c. 588.

The general rule in respect to a plaintiff’s right to dismiss before final submission is, that where the answer sets up new matter demanding affirmative relief for which the defendant might maintain a separate action against the plaintiff, the defendant, as to such new matter, is deemed a plaintiff and can not thereafter be deprived of his right to a trial of his cause by a voluntary dismissal or nonsuit by the plaintiff. 6 Ency. PI. and Pr. p. 848, and cases cited in the notes. But this rule has never obtained in this State. On the contrary, the Supreme Court, except in special proceedings, has construed the right of a plaintiff to dismiss or take a nonsuit under section 632, supra, before final submission, to be absolute and unconditional. With this construction before it, the Legislature in 1889 enacted sec*486tion 8172, supra. This section does not interfere with or in the least abridge a plaintiff’s right to dismiss a suit or take a nonsuit before final submission; but it secures to a defendant who has filed a counterclaim a new right; that is, it retains the counterclaim or set-off in court after the dismissal of plaintiff’s cause of action and authorizes a trial and judgment thereon. It does not modify or qualify section 632, supra, in the least and it is apparent that the Legislature did not intend by section 8172, supra, to abridge plaintiff’s right to dismiss a suit or talce a nonsuit as that right had been theretofore defined by the Supreme Court, and, we think, the rule prevails in this State, that in all ordinary actions at law or in equity, the plaintiff has the right before final submission to dismiss his suit or take a nonsuit, irrespective of the fact that matters are pleaded in the answer which would entitle the defendant to affirmative relief and for which he might maintain a separate action against the plaintiff. It follows that the court erred in sustaining plaintiff’s motion to dismiss.

• The judgment is reversed and the cause remanded with directions that plaintiff’s motion to dismiss the suit be sustained and the cause of action be dismissed.

Goode and Reyburn, JJ., concur; the former on the ground that in this case plaintiff was entitled to take a nonsuit.