Missouri State Life Ins. Co. v. Robertson Banking Co. , 223 Ala. 177 ( 1931 )

On Rehearing. Neither the policy nor any of its provisions are here presented. The argument of counsel for appellant upon reconsideration of the cause rests upon the assumption that the policy provisions as to a loan are the same as those considered in cases cited in note 92 to 32 Corpus Juris, 1166, and in Provident Savings Life Assurance Society v. Loeb (C. C.) 115 F. 357, and that therefore, for all practical purposes, the loan amounted to a mere anticipation of the final proceeds. But we think, in the absence of the policy or any of its pertinent provisions, such an assumption is unwarranted, and particularly in view of the well-established rule that upon demurrer the pleading is construed most strongly against the pleader. It may be conceded that in some respects the modern tendency is to a more liberal interpretation of the rule of interpleader (Marsh v. Mutual Life Ins. Co., 200 Ala. 438, 76 So. 370); but whether or not appellant's assumed case would justify a more favorable result we need not stop to inquire, as no such case is presented by the bill before us.

The argument is further advanced that the bill should be sustained as one in the nature of a bill of interpleader upon the theory that equitable relief is sought in addition to the interpleader, namely, the foreclosure of its lien or pledge. Jones v. Dimmick, 178 Ala. 296, 59 So. 623. But, as stated in the original opinion, no such relief was prayed, and the averments of the bill are not consistent with such theory. It may be conceded that, had such relief been sought consistent with the bill's averments, an entirely different case would have been presented.

With the bill before us in its present shape, we are persuaded the correct conclusion has been reached, and the application for rehearing will be denied.

Application denied.

ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.