President of the Union Bank v. Kerr

| New York Court of Chancery | Dec 15, 1849

The Chancellor:

This case is brought before this court, upon the petition of the defendant, Kerr, to compel the plaintiffs to elect between this suit and an appeal prosecuted by them to the Court of Appeals, from a judgment rendered in favor of the petitioner, by Baltimore County Court, in a certain action of assumpsit, instituted by the petitioner, in that court, against the plaintiffs, on the 28th of April, 1847, and in which action, a verdict and judgment had been rendered in favor of the petitioner, before the present bill was filed.

The bill in this case, which was filed on the 4th of August, 1849, prays, that the defendants, Kerr and Glenn, may be required to interplead and settle their respective rights and demands, not only with respect to the sum of money for which Kerr recovered the judgment in the action of assumpsit, but that they s.hall? in like manper? interplead and .settle their respective rights to certain promissory notes, and bills of exchange, held by the complainants, to which the complainants claimed no title, and on account of which, the petitioner, Kerr, had commenced against the complainants, an action of trover and conversion, in Baltimore County Court, and which action is still depending in that court.

With regard to the money for which the petitioner, Kerr, has recovered a verdict and judgment, it is conceded the bill of interpleader comes too late, the rule being, that a bill of this description should not be delayed until after a verdict or' judgment, has been obtained. 3 Daniel’s Ch. Pr., 1755.

But it does not, in my opinion,“follow, that because the complainants in the bill, have comprehended a subject, in respect of which they are not entitled to the aid of the court, that it will not be extended to them with reference to another distinct subject, unless some other objection exists, than its association in the same bill with the matter, in regard to which, the complainant has delayed his application too long.

It appears, therefore, to me, that the complainants should not be precluded from the right to compel the defendants to interplead, so far as concerns the promissory notes and bills of exchange, the subject of the action of trover and conversion now depending in Baltimore County Court, because they have, in the same bill, asked the same relief with reference to another matter, in regard to which, they come too late.

This is not like the case of Bradford and Williams vs. Williams et al. decided in November last, and which was referred to in the argument. In that case, there was a single suit at law, and a bill in equity, comprehending the same matter, as was shown by one of the breaches assigned in the replication, and it was thought, that the court could not discriminate, and permit the action at law, and the bill in equity, to proceed at the same time, because it was possible, that some things might be litigated in the one, which were not embraced in the other. It was plain, as I thought, that the same thing, the alleged violation by the trustee of his duty, was proposed to be litigated in both courts, and as there was but one action at law, and one bill in equity, in which this double vexation was carried on, there appeared to me no way of affording relief, but by putting the plaintiff to his election.

But this is an entirely different case. The petitioner, Kerr, himself, brought the two actions at law. In one, he has recovered a judgment, and so far, it is conceded, the bill of inter-pleader cannot be maintained. The action of trover, is still depending, and it is no reason why the complainants may not, in a proper case, compel the defendants to interplead with reference to the subject matter of the trover suit, because they have taken an appeal from the judgment of the county court, in a suit already decided, and which is wholly independent of, and distinct from the action which is undecided. The assumpsit, and the trover, are distinct actions, brought separately by the petitioner, himself, and must be regarded and treated as involving different matters of controversy.

For these reasons, I am of opinion, that the case of Cockerell vs. Cholmely, 4 Eng. Cond. Ch. Rep., 494, cannot be relied on in support of the application to compel the bank to elect, even if it could be regarded as holding an adversary relation to the petitioner, which, however, may well be doubted. The bank, cannot in any view be considered as a plaintiff, with respect to the action of trover, because, in that action, there has been no judgment and no appeal. But as it is admitted that the bill of interpleader cannot be maintained with respect to the action of assumpsit, an order will be passed, requiring the bank to elect whether it will prosecute the appeal from the judgment of the County Court in that action, or pursue its remedy upon this bill.

With regard to the injunction to restrain the defendant, Kerr, from proceeding in his action of trover and conversion, and the defendant, Glenn, from commencing any action against the complainants in respect to the subject spoken of in the proceedings, it may be sufficient now to say, that though the bill prays_/br relief by way of injunction, it does not pray for the process of injunction, without which prayer the process cannot be granted. Story’s Eq. Pl. section 41, note 2.

The Chancellor thereupon passed the following order:

The President and Directors of The Union Bank of Maryland, vs. John B. Kerr and John Glenn.

In Chancery, 15fft February, 1850.

Upon the petition of the defendant, John D. Kerr, and for the reasons stated, and after hearing and considering the argument of counsel, it is ordered, that the plaintiffs, within eight days after notice of this order, elect whether they will proceed at law with their appeal from the judgment of Baltimore County Court, in the action of assumpsit, in the proceedings mentioned, or in this court, in this suit, with respect to the sum of money for which said judgment was rendered, and, that if the said complainants elect to proceed with their said appeal, the bill, with respect to the sum so recovered, and to that extent, will be dismissed with costs, and if they elect to proceed in this court, that they proceed no further with said appeal, without the leave of this court first had and obtained.

William Schley for the Petitioner and for the Defendant, Kerr. Grafton L. Dulaney against the Petitioner and for Complainants.

John Johnson, Chancellor.