Karabacek v. Richards

249 Mo. 608 | Mo. | 1913

WILLIAMS, C.

, , , Interpleader. This is an interpleader suit, instituted in tbe circuit court of tbe city of St. Louis. Plaintiff’s petition alleges that be is a resident of St. Louis, and that on October 30, 1903, he borrowed $7800 of one Peter Meier, executing bis note tberefor, wbicb note was secured by deed of trust on certain real estate in tbe city of St. Louis; that said note is due and unpaid, and that said Peter Meier, tbe owner of said note, died August 6, 1908, then and there being a resident of Jersey county, State of Illinois. That defendant O. H. Richards was duly appointed administrator c. t. a. of said estate in Illinois, and in such official capacity claims to have possession of said note, and has demanded that payment of said note be made by plaintiff to bim as such Illinois administrator. That afterwards, defendant Harry Troll, public administrator of tbe city of St. Louis, Mo., applied to tbe probate court-of said city for letters of administration upon tbe estate of said Peter Meier, deceased, and that on or about September 12, 1908, letters of administration on said estate were duly issued by tbe probate court to defendant Troll, who thereafter, in bis official capacity as such administrator, claimed and demanded that tbe fund aforesaid be paid to bim. That tbe Illinois administrator claims tbe right to collect said debt, by reason of tbe fact that said note was in tbe possession of said Meier at the time of his death, and has since passed to the possession of, and is now held by, him as such administrator. That the Missouri administrator claims the right to collect said debt, because the same is secured by deed of trust upon property located in the city of St. Louis, Mo., and that the situs of the debt is in St. Louis, Mo., and belongs to him in his official capacity as the Missouri administrator of the estate of said deceased. Plaintiff then offers to pay the fund to the clerk of the court as soon as the court has acquired complete jurisdiction of the parties; prays that, said defendants be brought into court to interplead for said fund, etc., and that defendants be restrained from commencing any action or actions against plaintiff in respect to the above matter.

The bill is duly verified, and the plaintiff by affidavit states that the bill is not filed in collusion with either of the defendants, and that defendant O. H. Eichards, administrator, is a non-resident of the State of Missouri and cannot be served with the ordinary process of law in this State.

Defendant Troll, administrator, etc., was personally served with process, and defendant Eichards, administrator, etc., was notified of the suit by an order of publication duly published. Defendant Troll filed answer and interplea setting up his claim to the fund and the right to administer thereon. Defendant Eich-ards, by limited and special appearance, filed his plea to the jurisdiction, alleging his non-residence, and that it was not competent for the court to obtain jurisdiction of the person in a cause of the nature of the present suit' merely by publication, and moved the court to dismiss the cause for lack of jurisdiction over him. The circuit court, passing upon the plea to the jurisdiction, made the following order:

“The court, having heard and duly considered defendant 0. H. Eichards’, administrator’s, plea to the jurisdiction of the court heretofore filed herein,. does order that the same be, and is, hereby sustained, and that this cause be, and the same is hereby, dismissed as to said defendant.”

Thereupon defendant Troll, appellant, filed affidavit for an appeal to this court. No further order or judgment was made or entered by the court, except the order granting an appeal to this court and the order allowing the filing of bill of exceptions.

Defendant Richards has filed in this court a motion to dismiss the appeal, stating as grounds therefor, (1) that the judgment or order appealed from is not a final judgment, within the meaning of section 2038, Revised Statutes 1909, and (2) that the appellant is not an “aggrieved party,” within the meaning of said' section, and is not therefore entitled to take an appeal.

Appellant files suggestions in opposition to the motion to dismiss the appeal, and assigns as error the circuit court’s action in sustaining the plea to the jurisdiction.

Dismissed as to One Defendant: Right of Appeal. There was no final judgment of the circuit court as against appellant. So far as the record shows, the suit is still pending against him in the circuit court, and no disposition of the cage ag to him has been made. “The rule of appellate practice is well settled in this State that a judgment entry is not final so as to authorize an appeal unless it makes some disposition of all the parties to the record.” [Rock Island Implement Co. v. Marr, 168 Mo. 252.] But even assuming, arguendo, that the order made did amount to a final Party Aggrieved. judgment in the cause, yet appellant was not a party such as was “aggrieved” thereby, within the meaning of section 2038, Revised Statutes 1909. The claimant cannot demand as a matter of right that his claim be tried and satisfied by an interpleader suit. He cannot even enter into collusion with the stakeholder or debtor for that purpose, and the settled practice in such suits requires that plaintiff shall accompany his hill with an affidavit that “the suit is not brought in collusion with either of defendants.” [4 Pomeroy’s Eq. Juris. (3 Ed.), sec. 1328.] The benefits of such a proceeding are for the plaintiff’s protection, due to the peculiar .situation he is in with regard to the debt he owes or the stake he holds, and he alone is aggrieved if the judgment denies him the right to the protection and benefit of such a suit. “The supreme object of an in-terpleader is to protect the plaintiff, the stakeholder, and not the claimants against him.” [5 Pom. Eq. Juris. (3 Ed.), sec. 39.] Especially is this true with reference to the first stage of the interpleader proceeding, beyond which this suit has not progressed. “When a bill of interpleader is dismissed upon the demurrer of one only of the defendants, the other defendant cannot appeal from such decision. He is not prejudiced, for it is still open to him to sue the person holding the subject-matter in dispute.” [Maclennan on Interpleader, p. 328.] Defendants in interpleader suits cannot appeal from judgments dismissing the bill of interpleader. [13 App. Cases D. C. 202; 4 Am. and Eng. Ency. Law and Prac., p. 82.]

The appeal is dismissed.

Roy, G., concurs.

PEE CUEIAM. — The above opinion by Williams, C., is adopted as the opinion of the court.

All the judges concur.