Barnes v. Bamberger , 196 Pa. 123 ( 1900 )

Opinion by

Mr. Justice McCollum,

Two months prior to the institution of this suit the defendants therein were made garnishees in a foreign attachment proceeding against the plaintiff, by George Shupert. The defendants in the suit aforesaid admitted that they were indebted in the sum of $1,018.43 for merchandise purchased by them of Barnes & Company, between March 22, and April 13, 1898, . and expressed their willingness to pay said sum into court on such terms as would relieve them from liability to be put to the expense of defending two suits, and to the risk of being compelled to pay said sum twice. After the plaintiff’s statement of claim was filed and before a plea was entered the defendants presented a petition for an interpleader between the plaintiff and Shupert and in which they averred that the garishee proceedings were served on them before they had any ‘notice of the assignment of the claim to the use plaintiff. The petition contained an offer by the defendants to pay into court the sum they owed for merchandise bought of Barnes & Company or to dispose thereof as the court should order. On July 13,1898, the petition ivas filed, with the affidavit, and on ■due consideration a rule was entered to show cause why John Barnes to use of S. J. Meade, and George Shupert, should not interplead as to the subject-matter of the action, and why L. Bamberger & Company, defendants, should not have leave to pay the money into court, and be allowed their reasonable costs; rule returnable on the first Saturday of October, 1898. All proceedings to stay pending the rule. On October 8,1898, the court refused to order the plaintiff and the attaching creditor to interplead and made absolute that part of the rule allowing the defendants to pay the money into court. No reason was stated or explanation given by the court for its action. The defendants then filed an affidavit of defense admitting the claim but again setting forth all the facts and circumstances of the •case, and in conclusion asked the court to so mold the judgment ■as to protect them from a double liability in the premises. Upon a rule for judgment for want of a sufficient affidavit of defense the court entered judgment against the said defendants for the full amount of plaintiffs claim with interest, and refused to mold the judgment as prayed for.

The defendants having brought themselves within the letter and spirit of the act of March 11, 1836, and disclaimed all interest in the subject-matter of the action, the court should without delay or hesitation, have granted the interpleader prayed for. The payment of the money into court was not a condition precedent to the order for an interpleader, nor was the entry of a judgment in the suit of Barnes & Company to the use of Meade, under the circumstances, a justifiable proceeding. There is nothing discoverable in the conduct of the defendants which excused the action of the court, and the interpleader act ■does not contemplate a payment of the money into court and a disposition of the controversy by the court without a jury. In any view of the case presented by the record it was error .in the court to discharge that part of the rule relating to the interpleader, and to enter judgment against the defendants.

“ A foreign attachment suspends the interest on so much of the debt attached as will be required to satisfy the plaintiff’s demand, whether the defendant be the real owner or not, if the debt is wrongfully attached the owner has his remedy over against the plaintiff in the attachment: ” Mackey v. Hodgson, 9 Pa. 468.

“A garnishee in an execution attachment is not liable for interest on the money in his hands due the defendant therein,, while the action is pending; and in all attachment cases a garnishee without fault recovers costs: ” Irwin v. P. & C. Railroad Co., 43 Pa. 488.

Judgment reversed and rule to interplead reinstated and. made absolute.