| Or. | Jan 15, 1880
By the Court,
The first question raised by the appellant is one of jurisdiction. He claims that the matters in controversy between the several parties in this suit were not the proper subject of interpleader. Judge Story says: “ A bill of interpleader is ordinarily exhibited where two or more persons claim the same debt, or duty, or thing from the plaintiff by different or separate interests; and he, not knowing to which of the claimants he ought of right to render the same debt, duty, or other thing, fears that he may suffer injury from their conflicting claims, and therefore he prays that they
We think the subject-matters in controversy in this suit come clearly within this rule, laid down in the books on equity pleading. The respondent admitted that he was indebted in the sum of three hundred dollars on the note given by him. Apparently the debt was due to S. A. Lindsay, the appellant, and it was claimed by her. This claim or right was denied by the creditors of her husband, who had garnisheed the debt in the hands of respondent. They alleged that there was collusion between the husband and wife to hinder, delay, and defraud them by taking the note in the name of the wife, when, in fact, the amount specified in it belonged to the husband. To try and determine this question of alleged fraud was within the peculiar province of a court of equity. A court of law had no jurisdiction of it, and the county court, in which the action on the promissory note was pending, had no equity jurisdiction conferred upon it by law to try questions of fraud.
The appellant contends that the respondent ought to have made the defense to the action, if any he had, in the county court, and that having failed to do so, he should not now be permitted to come into a court of equity for relief. But it is difficult to perceive what defense he could have made in the county court to the action against him, as he did not deny the validity of the note on which the action was brought. On the contrary, he averred his readiness to pay the amount due on it, to whomsoever it should be adjudged to belong. And that was a matter which could not be tried there, as the determination of it was cognizable only in a court having equity jurisdiction. Those who had garnisheed the money due on the promissory note, claiming that it was the property of A. B. Lindsay, had a right to establish their claim to it as against the appellant, but they could not interpose this defense in the action against the respondent in the county court. And the fact that the appellant obtained a judgment in her favor in that court after the garnishee
It is also claimed by the appellant that she should have been allowed to prove that there was collusion between the respondent and the defendants, who garnisheed the money on the note. There was an averment in the complaint that the suit was not brought by collusion with either of the defendants. The appellant demurred to the complaint, and the demurrer having been overruled, she did not ask leave to answer before the order of interpleader was made by the court. We think it was then too late to raise any question of collusion between the respondent and any of the defendants. Under the old system of equity practice, when the bill was not required to be sworn to, the plaintiff was required to file, with a bill of interpleader, an affidavit that there was no collusion between himself and any of the other parties to the suit; but the court would not permit any evidence to be adduced to contradict the affidavit. (2 Daniell’s Ch. Pl. & Pr. 1563.)
There is another reason why this point can not be considered here. The report of the referee is silent upon the question whether there was or was not any collusion between the respondent and any of the defendants, and no exception was taken to it on this account, and as this ground of defense was not taken in the court below, it can not be made here for the first time.
The other points relied upon for a reversal of the decree of the circuit court are mainly questions of fact, as to whether the promissory note was taken in the name of the appellant for the purpose of defrauding the creditors of her husband, and whether the claims of the defendants, who garnisheed the money due on the note, were just and legal demands against the defendant, A, B. Lindsay. These were controverted and contested matters before the referee, upon which a great deal of testimony was taken on both sides. And after hearing it, the referee found, on all these questions, adversely to the appellant.
The decree of the court below is affirmed with costs.