Dezouche v. Garrison , 140 Pa. 430 ( 1891 )

Opinion,

Mr. Justice Green:

The proceeding in controversy commenced by a petition of Woodside, garnishee of Walter G. Garrison, who is the defendant in an action of foreign attachment brought by DeZouche against him, asking tlxe court below to direct an issue to be formed between DeZouche and one Anna A. Garrison, to determine tlxe right to a sum of 0464.84, for which the said Anna A. Garrison had recovered a judgment against Woodside. The petition alleges that an action had been brought in Common Pleas No. 1, of Philadelphia county, by Anna A. Garrison, against the petitioner, to recover the value of certaiix household effects and persoixal property, and that the plaintiff: in the attachment case “claims that as between him aud the said Axnxa A. Garrison, the said property belonged to Walter G. Garrisoix, the defeixdant herein.” The petitioner further alleges that he is a mere stakeholder of the fund, and wishes to pay the rnoxxey to tlxe persoix entitled, or into court, and therefore asks aix issue on the right to receive the money.

The petition is disingeixuous in not stating the cause of action in the suit brought against the petitioner by Anixa A. Garrison, bxxt it is stated that the judgment had already been recovered when the petition was presented. In the appellant’s history of the case it is said that the household goods and personal effects, mentioned in the petition, had been stored with the garnishee, Woodside, either by Anna A. Garrison or her husband, Walter G. Garrison, as a storage-house keeper for safe-keeping, and that he, Woodside, liad sold the goods without legal notice being given to tlxe person who stored them. It is further stated that suit was then brought by Anna A. Garrison, which was referred to a referee, and that during the pendency of this litigation the present attachment was issued. But it is nowhere stated, either in the appellant’s petition for the issue, or in the history of the case, or in the appellee’s counter-statement, when the writ of attachment was issued and served, or when the action by Anna A. Garrison was commenced, or when the interrogatories to the garnishee were filed, or whether any interrogatories were filed, or whether any answers were filed, or when the judgment of Anna A. Garrison against the garnishee was obtained. We should have been informed of all these matters, in order to have an intelligent understanding of all the circumstances which require consideration. Upon consulting the record azid the docket entries, we find that the writ of attachment was issued and served on December 28, 1888; the action of Anna A. Gaz'rison against Woodside was No. 663 March Term 1889; interrogatories were filed and scire facias issued September 25, 1889, returned service accepted. No answers were filed by Woodside. The date of the judgment of Anna A. Garrison against Woodside is nowhere given, but the petitioner says it was obtaizied before the petition was filed, so that the defendant had full notice of the attachment before the judgment was entered. In the counter-statement it is alleged that the action of Anna A. Garrison was an action of trespass to recover the value of the goods, and as this is not denied by the appellant we must infer that this avermezit is correct.

The case is thus presezited that the plaintiff, Anna A. Garrison, had0 brought an action of trespass against the garnishee for damages for appropriating her personal goods, and had recovered a judgment therein against him for $464.84. Of course, it was an adversary proceeding in which the plaintiff was obliged to prove, and, we must assume, did prove, every element necessary to her right to recover from the garnishee the value of the goods in question. This includes her title, which was asserted and successfully maintained against the defendant, azid fully establishes her right to have him pay to her the full amount of the damages recovered. She has therefore already gone all the way through the necessary legal contest which determizres absolutely her right to have him pay to her the very money in controversy. He now proposes to have that right tried over again, by introducing another person who , does not at all claim her right to the money, as between her and Woodside, but his own right or title to the goods which were the subject of the action of Anna A. Garrison, because he is a creditor of her husband, Walter G. Garrison. And this effort is made notwithstanding the fact that the attachment was issued during the pendency of the suit of Anna A. Garrison against Woodside, and might have been availed of by Wood-side in that action. . But, instead of doing this, he makes defence in the action, presumably every defence that he could make, and is defeated by the recovery of an adversary judgment, and not until then does he seek to introduce a third person into the litigation. If this third person had any claim against Anna A. Garrison, either by assignment of her judgment or as a creditor of hers, there would be at least plausibility in the application for the interpleader. But no such claim is made. On the contrary, it is expressly stated that the claim of DeZouche is against another person, the husband it is true of Anna A. Garrison, but a distinct person; and that his claim against him is as a creditor, and that he, the husband, was the real owner of the goods for which Anna A. Garrison has already recovered a judgment.

We have been referred to no case either in this commonwealth or elsewhere where an interpleader has been allowed in such circumstances. Our act of March 11, 1836, § 4, P. L. 77, distinctly requires that the defendant shall make his application “ at any time after declaration filed and before plea pleaded,” and he must also offer to bring the money or goods into the court, “ or to pay or dispose thereof as the court shall order.” He must also “disclaim all interest in the subject-matter of such action.” Nothing of this kind was done. The defendant brought no money or goods into court; he made no disclaimer of all interest in the subject-matter of the action; he made no application whatever for an interpleader pending the action, but proceeded to trial and judgment, and after that, for the first time, he sets up the claim of another. It is too late to applfor an order to interplead, after the case is at issue: 1 T. & H. Pr., 275; Frost v. Heywood, 2 Dowl., N. S., 801. That the defendant, who applies for the interpleader, must be a mere stakeholder; that he must have no interest in the subject-matter of the suit; that he must admit his liability for the whole amount of the plaintiff’s demand, are principles so well settled in the interpleader practice that no discussion of the subject is necessary.

The whole matter is fully reviewed and explained by our Brother Clark, in the opinion delivered by him in the case of Bechtel v. Sheafer, 117 Pa. 555. He there shows that, “as a general rule, the party seeking relief by an interpleader must not have incurred any independent liability to either of the rival claimants; if he have expressly acknowledged the title or right of one of them, and agreed to hold the property for him, or, disregarding the adverse claim of one, has by contract made himself liable in any event to the other, he cannot be said to stand indifferent between them.” In the present petition, it is expressly stated that the goods were deposited with the defendant by either Anna A. Garrison or her husband, and as Anna A. Garrison recovered in her adversary action against him, we are bound to assume that she, and not her husband, was the bailor of the goods. It is also shown in the opinion above referred to “that under the act of 1 & 2 William IV., an interpleader will not be awarded to relieve a party under an express promise to pay or perform, against an antagonistic and independent claim.....Nor can a bailee ordinarily raise an interpleader between his bailor and one who asserts an independent, antagonistic, and paramount title.” Again it is said, “ It is true, nevertheless, that the proceeding cannot be sustained by a party who has any personal interest in the subject of controversy: Dohnert’s App., 64 Pa. 314; Bridesburg Mfg. Co.’s App., 106 Pa. 275. The party applying for it must occupy the place of a mere stakeholder, without any rights of his own to be litigated.” In the principal case of Bechtel v. Sheafer, the application was made in the original suit against Sheafer, before plea pleaded, and with an absolute disclaimer of any interest in the fund in dispute, and an offer to pay the money into court. None of these features exist in the present case; and whether the application be regarded as under the common-law practice, or the practice under the act of 1 & 2 William IV., or under our own act of 1836, or under the practice in equity, the result is the same, and the order for an issue was properly refused.

The order of the court below, refusing the issue, is affirmed.