20 Mo. App. 111 | Mo. Ct. App. | 1886
Lead Opinion
I.
The plaintiff contends that the interplea was improperly filed in this case, it having been filed after a final judgment had been rendered in favor of the plaintiff in the attachment suit. The record fails to show that such was the fact, and wfe are bound by the record.
II.
The only other question presented and argued by counsel is, whether the interpleader by giving the forthcoming bond to the sheriff, under the circumstances in evidence, was estopped from claiming the property fey interplea. Upon this question the case,' it seems to fee conceded, depends. The trial court held that the inter-pleader was so estopped. Was that holding correct? It is apparent that the facts of this case do not bring it
Inasmuch as the bond contains no recital that the property seized is the property of the defendant, if there is an estoppel, it is an estoppel, not by deed, but in pais. If this were an action on the bond it would fall within the rule enunciated in Page & Bacon v. Butler et al. (15 Mo. 76). In that case it was said, £ £ we hold, that the claimant of property levied on by virtue of its delivery, can only avail himself of his claim by complying with the conditions of - the bond, delivering the property at the time and place required, and malting his' claim to it. If he suffers a forfeiture, he cannot by a future successful assertion of his claim, avoid the consequences.”
In that case it was said further, “the determina- • tion of this case is based upon the principle recognized in courts of many of our sister states, that when goods seized under execution, are delivered to a third person,, on his giving a receipt, promising to re-deliver them on a given day, and the receiptor refuses to comply with his promise, claiming that the goods, at the time of the levy and receipt, were his own, he is estopped from setting up title in himself, in an action on his undertaking.” Among other cases cited in support of the above principle was the case of Bursely v. Hamilton (15 Pick. 40). In the latter case it was said, “but if the promise had been complied with, had the defendant delivered over the goods agreeably to his contract, he might then have brought his action of replevin, trespass or trover, to try his right of property. He would no longer be estopped by his contract and the implied admission contained in it, and upon proving title in himself, as he has proved it in the present action, he would have recovered the goods or their value.” It would thus seem that the interpleader, by reason of the bond, would only have been estopped from
But had the interpleader, upon the seizure of the property in his possession by the sheriff, as the property of the defendant, made no claim to the property as his own and had given the bond in evidence, he would, it may be conceded in this case, have been estopped from laying claim to the property as his own in any proceeding. And this would be on the general principle, that will not permit one, who sees his property sold as the property of another without objection or notice of his rights, to afterward assert his claim. Although such application of this general principle is supported by the decisions of many, courts of weight and authority, it may well be doubted whether the principle has any application, except where the party for whose benefit the bond is given may have been misled thereby and in consequence thereof taken some action, which would cause injury to him should the claimant be permitted to assert his claim. Welland Canal Co. v. Hathaway (8 Wend. 483), and dissenting opinion of Bronson, J., in Bezell v. Odell (3 Hill 220). But, as before said, conceding, in this case, that the interpleader would, on the said principle, have been estopped in the case supposed, it is not perceived how that principle can have any application to the real facts of this case, because, in this case, the inter-pleader did give written notice, verified by his affidavit, of his claim to the property seized by the sheriff, and the sheriff in his return of the writ of attachment certifies to the fact of the claim having been made by the inter-' pleader.
It would seem that, upon principle and upon the authority of the cases of Page & Bacon v. Butler et al., and Bursley v. Hamilton, supra, there can be no estoppel against the interpleader’s right to assert his claim to the property in this manner. But we are not without adjudication upon the identical question. In Kentucky a similar question arose under the following statutes : By
Our statutes in this state, bearing upon the question, are as follows: Section 421, Revised Statutes : “ When property of the defendant, found in his possession, or in the hands of any other person, shall be attached, the defendant or such other person may retain the possession thereof, by giving bond and security, to the satisfaction of the officers executing the writ, to the sheriff, his successor, or their assigns, in double the value of the property attached, conditioned that the same shall be forthcoming, when and where the court shall direct, and shall abide the judgment of the court.”
By his interplea the interpleader in no way violated any of the terms of the bond. By the interplea he did not attempt to dispose of the property contrary to the direction of the court, or any judgment that might be rendered by the court. On the contrary, by his inter-plea the interpleader asked the court to render judgment in the case in favor of his right to the property. Had such judgment been rendered it would hardly have been contended that the interpleader would have failed to comply with the obligations of the bond.
The bond was required in order that the property should be forthcoming so as to abide any order the court might make in the case. The judgment of the court was to be in accordance with the rights of all the parties in interest. By his interplea the interpleader placed the property subject to the order of the court, which was a compliance with, and not a violation of, the terms of the bond. And especially is this so when we consider that the interplea had to be filed before final judgment in the attachment suit (McElfatrick v. McCauley et al., 15 Mo. App. 102), and that, upon having been filed) it should have been tried before adjudication “upon the matter in dispute between the other parties.” Ladd et al. v. Couzins, 35 Mo. 516.
Again, we have said that, had the interpleader delivered the property referred to in the bond to the sheriff, he might have maintained an action in replevin immediately after such delivery. The execution of the 'bond would not have deprived the interpleader of the right to assert his right to the property in such an action. But the right to interplead under our statutes “is in the nature of an action of replevin engrafted upon a suit by attachment. Burgert et al. v.
In Haxtom v. Sizer (23 Kas. 310) and Wolf v. Hahn (28 Kas. 588), the interpleader made no claim to the property at the time of the execution of the delivery bond. And we think that fact makes a material distinction between those cases and this case. But, if there be a conflict between those cases and the views herein expressed, we adhere to those views for the reasons given.
The judgment is reversed and the cause is remanded.
Rehearing
ON MOTION FOR RE-HEARING.
The appellant has filed in this case an abstract of the record. The respondent has filed no counter abstract. In the absence of such counter abstract we assume that the appellant’s abstract is correct. To that abstract we confine ourselves, as if it were the record itself. Prom that abstract it does not appear that judgment had been rendered in the main attachment suit, prior to the filing of the interplea by the appellant.
We adhere to the position, taken by us in the opinion, that under the facts of this case there is no estoppel against the appellant. We have great respect for the opinion of the court, which decided the case of Cose et al. v. Steele et al. (8 Pacific Reporter 244), but do not, of course, feel bound by it.
The motion for re-hearing is denied.
