| Mo. | Dec 23, 1893
In this action, the plaintiff seeks to recover the sum of $2,518.69 which he alleges in his petition the defendant received as the proceeds of a draft for that amount drawn by the Louisiana National Bank of New Orleans on Winslow, Lanier & Co., of New York, in favor of the plaintiff, and which was indorsed by him and delivered to the defendant to be collected for his account.
The defendant in its answer to plaintiff’s petition, says: “It is true as charged in the petition that on the thirteenth day of January, 1891, plaintiff deposited with defendant a certain draft for the sum of $2,518.69, drawn and indorsed by the parties therein charged, but defendant alleges and charges that when said draft was «
“Defendant further answering says that the Louisiana State Lottery Company is a corporation duly organized under and by virtue of the laws of the state of Louisiana, and as such is engaged in a general lottery business in the selling of tickets and fractional parts thereof for regular monthly drawing. That on the sixteenth day of December, 1890, the plaintiff and John McAuliffe, Charles J. Smith, Benj. Tassaro, Henry Beckemeir, George M. Long and J. H. MeCuistion, with three other parties, to this defendant unknown, entered into an agreement to • buy ten one-twentieth tickets in the Louisiana state lottery at the city of New Orleans, in the state of Louisiana, for the drawing thereof, jointly and,in partnership; that the parties last aforesaid furnished their proportionate share of the money necessary to pay for their interest as aforesaid in said tickets; that one of said parties there
‘ ‘Plaintiff owned and was entitled to a one-seventh interest in said seven tickets, which tickets were numbered 4600, 4656, 39558, 27093, 19614, 12135, 32079, and that each of the parties aforesaid owned and were entitled to a one-seventh interest in and to said tickets, and that said tickets were held for the joint use and benefit of plaintiff and the parties aforesaid,' each being interested one-seventh in same. That said December drawing was duly held on the-day of December, 1890, and one of said tickets, to-wit,. number 4600, drew the sum of $2,500, and said ticket number 4656 drew the sum of $20; that said ticket number 39558 drew the sum of $5. That when the fact become known to the parties aforesaid that said tickets had drawn said prizes, all of said tickets were delivered to and held by said plaintiff for the joint use and benefit, and in trust for, the plaintiff together with the parties aforesaid, and for the purpose of collecting the same from the Louisiana State Lottery Company at New Orleans, Louisiana. That the plaintiff, by virtue of the agreement aforesaid, and for the use, benefit and interest of all the parties aforesaid, together with himself, proceeded to cause to be collected the three drawing prizes as aforesaid, and received for all of said tickets a certain draft drawn by the Louisiana National Bank, a corporation duly
“Defendant further answering admits that it has collected the said draft as charged in plaintiff’s petition, but denies that' plaintiff is entitled to, or the owner of, the entire proceeds of said draft. Defendant alleges that the same is 'a trust fund in which all the parties aforesaid have, hold, own and are entitled to an undivided one-seventh interest; that the said parties herein' named have notified this defendant of their interest in the draft and the proceeds thereof, and not to pay to plaintiff their share and interest therein. Defendant alleges and charges that the plaintiff is wholly irresponsible and insolvent. That the amount so collected is now in the hands of this defendant and it brings the same into court and prays that said claimants be made parties herein and be required to inter-plead, and that the court by its judgment determine the rights of the parties.”
It does not appear that the money was in fact brought into court from any entry upon the record before us. No attention seems to have been paid to the prayer that the claimants named in the answer, other than the plaintiff, be made parties and required to inter-
It will be observed that the defendant by its answer, came into court and said: I have the fund in my possession which you demand; I am ready and willing to bring it here into court; this is how it came into my possession. I have and claim no personal interest in it, but there are other parties who do claim an interest in it, antagonistic to your claim; these are the names of the parties, and this the nature of their claim, and these are the particular facts upon which such claims are based, and showing the real question to be tried between them. There can be no question but
If the facts stated in the answer had not been denied the judgment thereon must have been that the defendant bring the money into court, that the claimants named, be made parties and required to interplead, and that the defendant, upon bringing the money into court, be discharged with his costs to be paid out of ■the. fund, and the rights of the real parties in interest would thereafter have been tried upon the interpleas. But as the facts stated in the answer were denied, it became necessary to determine by trial upon evidence whether the defendant’s bill of interpleader ought to be sustained. “An interpleading suit involves two successive litigations — one between the plaintiff [in the bill] and the defendants upon the question whether the defendants shall interplead — the other between the different defendants, i. e., the interpleading itself. The subjects of these two litigations are wholly separate and distinct, and, therefore, they require separate allegations and separate proofs.” Langdell on Eq. Pleadings [2 Ed.], sec. 162; Story’s Eq. Pleadings, note a, sec. 291.
The only issue for trial raised by the reply to defendant’s answer was, whether the other claimants named in the answer should be required to interplead with plaintiff for the fund. The evidence on this issue supported all the material allegations of the answer, showed a genuine claim upon the part of each of the other persons named in the answer, to one-seventh of the proceeds of the draft on New York, which thedefendant only undertook to collect, and that such proceeds,, after the draft was collected, was not placed to the credit of any of the parties, but owing to the conflicting claims made upon it as stated in the answer, has
With the issue thereafter to be tried between the interpleaders, if they should see proper to make any, the defendant had nothing to do, nor have we, for those’ isssues have not yet been raised for trial. Upon . no principle' of practice or pleading with which we are familiar, can the judgment be sustained. It was against the defendant, when upon the' only issue' tried or which could be tried, it should have been in its favor. It was against the defendant in form but against the -plaintiff in fact as to six-sevenths of the amount he sued for in favor of parties who never sued him, and who were not parties to the action, and was upon issues not raised and which could not have been tried. This strange anomaly, by name a judgment, cannot stand; the only thing we can do is to reverse it, and remand the cause, so that it may be proceeded with to such proper judgment as the situation of the case demands as indicated in this opinion. It is accordingly so ordered.