Harden v. Barbaree , 240 Ala. 458 ( 1940 )

This is the second appeal in this case. Harden v. Barbaree,238 Ala. 519, 192 So. 268.

The appeal seeks a review of the decree overruling demurrer to the amended bill. The amended bill seeks a division of moneys deposited by agreement in a bank to await a due division among parties in interest.

The action is in the nature of an interpleader under the statute (Code, § 10390) and makes the bank wherein the money is deposited a party respondent.

The last amendment, after the reversal of the cause, shows a bona fide effort was made by the appellee to agree upon an equitable division of the fund in question after a full disclosure of the facts. The amended bill further discloses what portion of the fund complainant claims as his share on an equitable division of the funds resulting from recovery in a tort action.

The necessity for complainant to resort to equity is disclosed by the amended pleading. It is further shown that there has been no undue delay on complainant's part to make an equitable division by agreement, — "a prerequisite to coming into equity."

A remedy at law is not sufficient if its adequacy depends upon the will of the opposing party. 21 Corpus Juris, p. 50, § 27. This is one of the reasons for the provisions contained in § 10390 of the Code.

The provisions for suggestion of claim of a third party in an action pending on any contract for the payment of money at any time before issue joined (Code, § 10386) has no application to the instant action, which is in the nature of an interpleader touching the two parties in interest in the fund and the disinterested stakeholder. 33 Corpus Juris, p. 457.

In the former opinion it is observed that claimants to a fund, as affecting the stakeholder, are each required to set up the claim by pleading in the nature of a cross-complaint. Steele et al. v. First National Bank of Mobile et al., 233 Ala. 246,171 So. 353.

The amended pleading is sufficient, which was to duly inform the respective parties at interest.

The demurrer was properly overruled.

Affirmed.

GARDNER, C. J., and BROWN and KNIGHT, JJ., concur.