56 Mo. App. 433 | Mo. Ct. App. | 1894
— Concerning the material facts out of which this litigation has arisen, there is no controversy. On September 6, 1891, Rebecca Lowenstein, •the wife of Henry Lowenstein, was the owner of a house and lot in St. Louis county, and on said day she negotiated a loan of $1,600 from the respondent, and to secure said loan she and her husband executed .a deed of trust on her said property. On November 3, 1891, one Albers instituted a suit against Henry Lowenstein for material furnished in the construction of the house and also to enforce a mechanic’s lien against "the premises, which lien antedated the title of Mrs. Lowenstein and also the respondent’s deed of trust. Mrs. Lowenstein and the respondent were made parties 4o the suit. The latter having been served with process and still being indebted to Mrs. Lowenstein in the sum of $200 on account of the loan, on November 4,1891, it
Prior to any of the foregoing transactions, to-wit, November 8, 1890, one F. W. Peters, the assignor of the defendant Trembley, obtained a judgment against' Albers in the circuit court of the city of St. Louis for for $176 debt and $31.50 costs. Execution Was issued on this judgment, and on the -eleventh day of April, 1892, the respondent was summoned as garnishee-thereon, which proceeding is still pending. On April 22, 1892, Albers assigned his judgment against Henry Lowenstein to Joy, the appellant, who immediately had. the property advertised for sale under execution.
On June 11,1892, the defendant, Trembley, filed his-bill in equity in the circuit court of'St. Louis county in which the appellant, the respondent, Albers, and O. L. Mqtt were made defendants. The foregoing facts were alleged in the petition, but it was charged that the assignment of the judgment by Albers to Joy was without consideration, and that it was made for the purpose of defrauding him (Trembley) as a judgment creditor of Albers, and that Mott also claimed some interest in the judgment in connection with Joy. The relief asked was, that the respondent be required to pay to the petitioner the amount due on the mechanics’ lien judgment. That proceeding is still pending.
On June 22, 1892, the respondent instituted the present action in the circuit court of St. Louis county, in which Joy, Trembley, Mott and the sheriff of St. Louis county were made defendants. The foregoing-facts were set forth in the petition, and the further fact
( The appellant insists that the court committed ■error in refusing to hear evidence on the final hearing ■of the case. This contention is not borne out by the record. "When the answers of Joy and Mott came in, .Joy filed a motion to dissolve the injunction against himself and the sheriff. The judgment entry recites' that the ease was submitted for final disposition on the ■answers of Mott and Joy and on the motion to dissolve ■the temporary injunction. On the hearing, the foregoing facts were either expressly admitted, or there was evidence tending to prove them. After the final disposition of the case on the motion to dissolve, the appellant asked the court to hear further evidence on the merits. At,this juncture the record contains this recital: “Whereupon plaintiff stated to the court that it had no further evidence to introduce, and defendants Joy and Mott were requested to introduce such further ■evidence as they might have, which they failed to do,
It is insisted further that the facts established are-insufficient to warrant or sustain a bill of interpleader. The general rule is that to sustain such a bill it must appear that the petitioner is a mere stakeholder, claiming no personal interest in the subject-matter, and that he is liable to be sued therefor by two or more rival claimants. The facts that such adverse claims have been made, and that suits have been instituted or threatened by the several claimants, must be averred and proved. Glaser v. Priest, 29 Mo. App. 1; Hathaway v. Foy, 40 Mo. 540.
That the allegations in the bill and the evidence adduced met the requirements of the law, we do not think admits of serious controversy. The respondent-had the money with which to pay the Albers’ judgment,, and was ready and willing to pay it to the person legally entitled to it. On the one hand, the appellant asserted that he was the owner of the judgment by purchase from Albers, and he was proceeding under his execution to sell the property which the respondent held as security for its loan from Mrs. Lowenstein. The title of Mrs. Lowenstein to the property was subordinate to the lien of the Albers’ judgment; consequently a sale under the appellant’s execution would have been very prejudicial to the
It is argued by appellant that the resp’ondent was not a debtor of Albers within the meaning of the statutes in this state regulating garnishments, and also that a judgment debtor in this state is not subject to garnishment under process from another jurisdiction; hence it is insisted that the garnishment of the, respondent on execution issued from the circuit court of the city of St. Louis was a nullity. It is not necessary for us to discuss or decide these questions, for their decision would not affect the issues in this proceeding. The questions suggested may become important in a contest between Joy and Trembley.
The allowance of $40 allowed the respondent as expenses and attorney’s fees was proper. That has been held to be the equity practice. Glaser v. Priest, 29 Mo. App. 1.
The judgment will be affirmed.