Boller v. Cohen, 42 Mo. App. 97

Boller v. Cohen

42 Mo. App. 97 | Mo. Ct. App. | 1890

Ellison, J.

Plaintiff instituted this action by attachment on an account claimed to be owing him by the defendant. A lot of merchandise was seized, and Joseph Ladensohn filed his interplea claiming the goods as his property. This appeal is by the interpleader, *99who failed in the trial court. Perhaps the greater part of interpleader’s point of objection to the action of the trial court is, that that court ignored the issues made by plaintiff’s “petition,” and by the “pleadings.” And that plaintiff had been permitted to recover the property ; and that, if he recovered at all, he should recover on his petition. These points, if misconceived, do away largely with the objections urged as a reason for reversing the judgment. That there is, or has been, a misconception of the scope of the trial on the intervention of a third party claimant and the duty of the trial court in such instances, is quite evident, In such case, the plaintiff does not recover at all, nor are the issues made by the petition in the original suit or the affidavit for the attachment. The petition, the grounds of attachment, the justness of the original claim or the right to an attachment are matters more nearly concerning the defendant to the action, and not the interpleader, who is an outside party permitted to intervene for the purpose of affirmatively claiming as his own the property attached. The question is, shall the interpleader recover? and such recovery must be by affirmatively showing that he is entitled to the property; the onus is on him. The primary question is not whether the property is M. Cohen’s, but is it interpleader’s? Teichman Com. Co. v. Bank, 27 Mo. App. 676 ; see, also, Waples, Attachment, 481-2. Of course, possession should be given its due weight in the determination of this question. Possession, alone, of an interpleader would perhaps be sufficient basis for him to attack the attachment proceedings as being void, or as, on their face, not justifying an attachment. But whether a mere naked possession, without right, is sufficient to maintain an interplea or change the onus of proof is not necessary to decide in this case.

To state the facts in detail would require much time and space. We have endeavored to convey a *100proper idea of the case by the statement. There is presented such a labyrinth of matter, consisting of sales, credits, debts, failures, attachments, going in and going out of business, among such confusing names and kinships, at such variety of places and under circumstances so novel, that the unraveling, if not difficult, has been quite tedious. It is enough to say that the evidence was quite ample to justify the verdict of the j ury; indeed, we are not able to see how any other result could have reasonably been reached.

Complaint is, however, made as to rulings on testimony and instructions. The instructions cover nearly ten printed pages, and will not be set out here. We have exa'mined them and find that, when taken together in the light of the evidence in the cause, the action of the court was proper enough. Two, given for interpleader, were interlined by the court, and we do not see where such interlineation worked any injury. Considering those given for both parties, we find the issue fully presented to the jury. This will suffice, even though others refused may have contained correct principles of law.

The scope of the evidence, and the ruling of the trial court thereon, must be considered with the nature of the case in its different phases, including the relationship of the parties. Such cases demand, and should be allowed, much more latitude of investigation than is otherwise permitted.

Objection was made to certain portions of the depositions offered by plaintiff. Several portions of the depositions appear to be marked by lines or crosses on the margin, but we have only considered that portion to have an objection, and a reason therefor, which is marked. We do not find any error in the rulings in this respect justifying a reversal of the judgment. The judgment being clearly for the right party, it is affirmed.

All concur.