123 So. 762 | Fla. | 1929
Lead Opinion
George S. Marsh, Jr.', appellee, made a contract with M. S. Brown, appellant, to construct a house and garage for $16,300.00. Brown undertook the execution of the contra.ct on his part, was paid the sum of $9,926.12 thereon, but before its completion he became involved in financial difficulties and was forced to abandon it. Marsh took up the contract where Brown abandoned.it and completed it at a cost of $3,673.23 to himself leaving a balance of $2,697.65 in his hands which he had agreed to^pay Brown to perform in full. At the time Brown abandoned the contract he owed the other appellants named herein various and sundry amounts for materials furnished to perform it, Some of these appellants brought actions against Marsh, and others filed claims with him.
At this juncture Marsh as complainant below filed his bill in the Circuit Court of Orange County praying that defendants, appellants here, be required to interplead their claims and have the same adjudicated with priorities, the bill also prays that the costs and expenses of this proceeding including a reasonable attorney’s fee be allowed from the sum held by complainant and paid into the registry of the court, that complainant be discharged from further lia
We are first confronted with the contention that the bill of interpleader is insufficient in that it does not contain the affidavit of no collusion.
The question of whether or not interpleader will lie is always preliminary to the trial of the issues between the defendants for without the establishment of this fact the defendants can have no contention as between themselves upon the record. If it is determined that the case is a proper one for interpleader, the plaintiff should be discharged from liability with his costs upon bringing the money or thing in dispute into court and the suit should thereafter proceed upon issues joined between the defendants. Where, however, at the hearing of the bill, it is made to appear that the defendants have by their several answers clearly and sufficiently presented the proper issues as between themselves, and that such issues are ripe for adjudication, the court may at the time it determines the question of interpleader upon the bill and issues thereto tendered also decide the questions at issue between the several defendants, and dispose of the case finally. 15 R. C. L. 232.
A bill of interpleader is not a proceeding in rem. It is where the complainant alleges that he has a fund in his hands in which he claims and has no interest, and to which the defendants set up conflicting interests. The complainant brings the fund into court and prays that the defendants contest it between themselves. Lowry et al. v. Downing Mfg. Co., 73 Fla. 535, 74 So. R. 525; 15 R. C. L. 222. The object of the affidavit of no collusion is to prevent the proceedings for interpleader from being resorted to for the
It is next contended that the court erred in granting the temporary restraining order.
The effect of the temporary restraining order which was afterwards made permanent was to abate all actions brought or contemplated on the part of defendants to recover from the complainant any portion of the monies held by him, but paid into the registry of the court. The facts here present ample ground for bill of interpleader. If this be true the bill of interpleader would avail appellee nothing unless the subject matter of the actions brought or contemplated against him could be held in abeyance pending the disposition of the interpleader. The record shows that due notice of the application for temporary restraining order was given and bond placed as a prerequisite to its requirement. It was not, therefore, improvidently granted.
The next assignment of error which we will consider challenges the authority of the chancellor to award the complainant from the funds in his hand, his costs including attorney’s fees.
The rule is well settled that where a bill of interpleader is filed in good faith the complainant is entitled to his cost
Other assignments of error have been considered by us. Some of them are raised for the first time in this Court and cannot be discussed. Others are predicated on the testimony but present no reversible error and will not be discussed in this opinion.
Affirmed in part, reversed in part.
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *255 George S. Marsh, Jr., appellee, made a contract with M. S. Brown, appellant, to construct a house and garage for $16,300.00. Brown undertook the execution of the contract on his part, was paid the sum of $9,926.12 thereon, but before its completion he became involved in financial difficulties and was forced to abandon it. Marsh took up the contract where Brown abandoned it and completed it at a cost of $3,673.23 to himself leaving a balance of $2,697.65 in his hands which he had agreed to pay Brown to perform in full. At the time Brown abandoned the contract he owed the other appellants named herein various and sundry amounts for materials furnished to perform it, Some of these appellants brought actions against Marsh, and others filed claims with him.
At this juncture Marsh as complainant below filed his bill in the Circuit Court of Orange County praying that defendants, appellants here, be required to interplead their claims and have the same adjudicated with priorities, the bill also prays that the costs and expenses of this proceeding including a reasonable attorney's fee be allowed from the sum held by complainant and paid into the registry of the court, that complainant be discharged from further liability *256 for any claim involved in this cause and that all suits affecting said claims be temporarily enjoined and that on final hearing said injunction be made final. A final decree was entered in compliance with the prayer of the bill and appeal was taken from that decree.
We are first confronted with the contention that the bill of interpleader is insufficient in that it does not contain the affidavit of no collusion.
The question of whether or not interpleader will lie is always preliminary to the trial of the issues between the defendants for without the establishment of this fact the defendants can have no contention as between themselves upon the record. If it is determined that the case is a proper one for interpleader, the plaintiff should be discharged from liability with his costs upon bringing the money or thing in dispute into court and the suit should thereafter proceed upon issues joined between the defendants. Where, however, at the hearing of the bill, it is made to appear that the defendants have by their several answers clearly and sufficiently presented the proper issues as between themselves, and that such issues are ripe for adjudication, the court may at the time it determines the question of interpleader upon the bill and issues thereto tendered also decide the questions at issue between the several defendants, and dispose of the case finally. 15 R. C. L. 232.
A bill of interpleader is not a proceeding in rem. It is where the complainant alleges that he has a fund in his hands in which he claims and has no interest, and to which the defendants set up conflicting interests. The complainant brings the fund into court and prays that the defendants contest it between themselves. Lowry et al. v. Downing Mfg. Co.,
It is next contended that the court erred in granting the temporary restraining order.
The effect of the temporary restraining order which was afterwards made permanent was to abate all actions brought or contemplated on the part of defendants to recover from the complainant any portion of the monies held by him, but paid into the registry of the court. The facts here present ample ground for bill of interpleader. If this be true the bill of interpleader would avail appellee nothing unless the subject matter of the actions brought or contemplated against him could be held in abeyance pending the disposition of the interpleader. The record shows that due notice of the application for temporary restraining order was given and bond placed as a prerequisite to its requirement. It was not, therefore, improvidently granted.
The next assignment of error which we will consider challenges the authority of the chancellor to award the complainant from the funds in his hand, his costs including attorney's fees.
The rule is well settled that where a bill of interpleader is filed in good faith the complainant is entitled to his cost *258
from the fund held by him. 15 R. C. L. 232; 33 C. J. 469. As to the allowance of attorney's fees from this fund the authorities are divided but so far as we have been able to find the weight of authority supports the allowance for attorney's fees commensurate with the service performed from said fund. Such fee to eventually fall on the defendant who was in the wrong and made the litigation necessary. Mutual Life Ins. Co. of New York v. Farmers and Mechanics National Bank of Cad'z., Ohio, 173 Fed.R. 390; Pettus v. Hendricks,
Other assignments of error have been considered by us. Some of them are raised for the first time in this Court and cannot be discussed. Others are predicated on the testimony but present no reversible error and will not be discussed in this opinion. *259
As to that part of the decree appealed from allowing attorney's fees the cause is reversed. In all other respects it is affirmed.
Affirmed in part, reversed in part.
ELLIS AND BROWN, J. J., concur.
WHITFIELD AND BUFORD, J. J., concur in the opinion and judgment.
STRUM, J., concurs in the affirmance, but is of opinion that complainant should be allowed his costs, including a reasonable sum for attorney's fees.
Concurrence Opinion
concurs in the affirmance, but is of opinion that complainant should be allowed his Costs, including a reasonable sum for attorney’s fees.