591 N.E.2d 356 | Ohio Ct. App. | 1990
On August 9, 1985, defendants-appellees Irma Stiffler, Karen Dutt, Merle Dutt, Dianna Dutt, and Lori Ault were involved in an automobile accident with an insured of plaintiff-appellee West American Insurance Company. Upon determining that the $200,000 limit contained in its policy was exceeded by the injuries suffered by the defendants, West American filed an interpleader action in order that the court might determine the proper distribution of the policy proceeds. West American also sought and received a court order permitting it to deposit the $200,000 with the clerk of courts pending the outcome of litigation. This was done and the intervenor-appellant Sue Yazel, Clerk of Courts, deposited the funds in a separate, interest bearing account.
Shortly before the trial date of August 3, 1989, the defendants entered into a settlement for the distribution of the policy proceeds and accumulated interest. The settlement was finalized and journalized on July 25, 1989, and included disbursement of the interest to defendants.
On July 17, 1989, appellant filed a motion to intervene alleging entitlement to the interest accumulated. This motion was denied by the trial court. The clerk then, prior to July 25, 1989, paid the interest accumulated on the insurance proceeds into the Marion County General Fund. Subsequent to the July 25, 1989 entry, the appellant paid the policy proceeds to defendants. Appellant also retrieved the interest from the general fund and this interest is now being held in a separate interest bearing account pending the outcome of this appeal.
Appellant assigns two errors on appeal.
Assignment of Error I
"The trial court erred when it ordered the clerk of courts to disburse interest earned by the clerk in her official capacity to private litigants."
Appellant claims that the trial court erred in ordering the payment of interest to the defendants since a statute requires its payment into the general *424 fund of the county and since the Ohio Constitution prohibits such a disbursement of interest. We do not agree.
The appellant relies on R.C.
The United States Supreme Court has struck down as unconstitutional a Florida statute which provided for the payment of interest earned on funds held in an interpleader action, such as that at bar, to the county. In Webb's FabulousPharmacies, Inc. v. Beckwith, supra, at 161,
"It was property held only for the ultimate benefit of Webb's creditors, not for the benefit of the court and not for the benefit of the county. And it was held only for the purpose of making a fair distribution among those creditors. Eventually, and inevitably, that fund, less proper charges authorized by the court, would be distributed among the creditors as their claims were recognized by the court. The creditors thus had a state-created property right to their respective portions of the fund."
This reasoning is equally appropriate here where the funds were deposited only for the benefit of the injured defendants.
Nor does the payment of this interest to defendants violate Section
Appellant's first assignment of error is without merit.
Assignment of Error II
"The trial court erred when it did not permit the clerk of courts to intervene prior to disbursing interest earned by the clerk in her official capacity."
Appellant claims that the trial court erred in refusing to grant her motion to intervene. Civ.R. 24(A) governs intervention of right and provides: *425
"Upon timely application anyone shall be permitted to intervene in an action: * * * when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." (Emphasis added).
Such an application must be timely filed not only with regard to the statute of limitations, but also in the context of the trial proceedings. Likover v. Cleveland (1978),
Appellant's second assignment of error is overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
THOMAS F. BRYANT and EVANS, JJ., concur.
EDWARD J. MAHONEY, J., retired, of the Ninth Appellate District, sitting by assignment.