| Mo. Ct. App. | May 8, 1900
This is a proceeding for an interpleader filed by the makers of a note for $1,000, dated fourth day of December, 1890, with interest from date, payable in five years thereafter, and subsequently extended for throe years, so that it matured December 4, 1898, at which time there was a balance due on the note of about $903.40, which was paid into court when this petition was filed. It is alleged in substance in the petition that two of the defendants set up title to the note as assignees for value, and demanded its proceeds from plaintiff's, and that the other defendant, the original payee of the note, claimed to be “still the owner,” and that she had not parted with title thereto, and was demanding payment and threatening suit. The petition further disclaims interest in plaintiffs; avers that they do not know the fact as to the ownership of the rival claimants, prays to have them made parties, and for an order of interpleader as to their respective rights and claims. The holders of the note answered averring their legal ownership and right to its proceeds as assignees for value, and charging that the petition for interpleader was not filed in good faith, but merely to obtain an allowance of costs. The original payee of the note answered admitting the execution of the note to her, stating that she did not know of her own knowledge whether or not this genuine note was in possession of the other two claimants, admitting that she notified plaintiffs that she was still the owner of the note and that she demanded payment thereof, and alleging further that she was still the owner and denying any right or title to said note in the other 'two defendants and praying for an award to her of the sum due thereon.
We are unable to concur in either of these positions. The proceeding in question is strictly equitable in its nature. The rule authorizing it has been stated by us in the following terms: “In order to justify the sustentation as such, a bill of interpleader should show that there is some doubt in point of fact to which of the rival claimants the admitted debt or duty belongs. It should, show also a color of right derived from a common source in the respective claimants, but it should not show a clear title in either against the other. It should satisfy the court that the debtor is a mere stakeholder and entitled before payment to the protection of equity in enforcing a settlement of the opposing claims.” Sullivan v. Knights of Father Matthew, 73 Mo. App. loc. cit. 45, and cases cited. The petition in this case by a reasonable intendment, which is the standard applicable to its averments, since no demurrer or motion to make more definite and certain was interposed, alleges a valid doubt in fact as to the ownership of the note; that the rival claimants have each a color of ownership, one set acquiring it from the prima facie effect of possession of the instrument, the other claimant basing her claim upon an averment that she had never parted with the title to the note, but that it still belonged to her. The petition does not show a clear and absolute title in either. It also shows a common source of the indebtedness to which their claims are made, and that the debtor has no other interest than to pay the sum in dispute to the rightful owner. - Clearly, therefore, the court did not err in overruling the objection to the petition made for the first time by a motion during the trial to exclude testimony. Marshall v. Ferguson, 78 Mo. App. loc. cit. 650, and cases
We are requested to make a further allowance in this case to cover the costs of this appeal. We prefer to leave questions of allowance to the discretion of the trial court. The judgment is affirmed, and the cause remanded for further proceedings.