59 Miss. 186 | Miss. | 1881
delivered the opinion of the court.
The bill in this cause is not maintainable as a bill for an interpleader, because the complainant did not seek the interposition of the court until after judgments had been rendered against him at law, in favor of the attaching creditors of Brown & Bro., and of the assignee of the note made by him to them. It is well settled, both by reason and authority, that one who asks the interposition of a court of equity to compel others, claiming property in his hands, to interplead, must do so before putting them to the test of trials at law. Yarborough v. Thompson, 3 S. & M. 291; Haseltine v. Brickey, 16 Gratt. 116; Cornish v. Tanner, 1 You. & Jer. 333. The remedy by
It is urged on behalf of the appellant that he could not have defended the action brought against him by Kuhn, on the ground that judgment had been rendered against him in favor of Field, Morris & Fenner, and therefore could make no defence at all, as he admits the debt to be due and payable to Kuhn or them. It is true that the defence indicated would not have availed the complainant; but this is true because it would have been no defence at all, as the contest was not whether some one else had recovered a judgment for the debt sued for, but whether Kuhn was entitled to recover. If, in addition to the fact that Field, Morris & Fenner had recovered judgment against him and the defendant in attachment, the complainant had pleaded that the judgments had been recovered, or the writ of garnishment served on him before the transfer of the note to Kuhn, and had sustained his plea by proof, he would have defeated the claim of Kuhn. This is precisely what Field, Morris & Fenner would be required to prove, to entitle themselves to the fund, if an interpleader was awarded, and thus the defence which the complainant might have made and failed to make in the action at law, would be made for him by another in equity.
The bill, though not maintainable as a bill for an interpleader, states that the complainant had no notice of the transfer of the note until after the rendition of the judgment in favor of Field, Morris & Fenner, and, by moving to dissolve the injunction on
Decree accordingly.