Paugh v. Delaware County Trust, Safe Deposit & Title Insurance , 62 Pa. Super. 523 ( 1916 )

Opinion by

Kepi-iart, J.,

A defendant who applies for an interpleader under the Act of March 11, 1836, P. L. 777, must be a mere stakeholder; he may, before plea entered, by disclaimer of all interest in the subject matter of the action, with an offer to bring the money into court and otherwise complying with the act, be relieved of the consequences of the litigation involving this subject-matter. “Where the defendant is a mere stakeholder, with no rights of his own to be litigated, and the suit is to recover money claimed by rivals as between whom the defendant has no interest, it is not error upon his petition to call in the claimant not on the record and to award an issue to determine the right to the fund”: Bechtel v. Sheafer, 117 Pa. 555. The Act of March 11,1836, does not take away the jurisdiction of courts of equity in interpleader proceedings and it may be desirable where there are a large number of claimants to resort to this latter procedure. The defendant proceeded by bill in equity which bill contained the material essentials of the Act of 1836. The court below as authorized by statute directed the proceeding to be certified to the law side of .the court to the number and term wherein this plaintiff had instituted suit for the money held by the defendant stakeholder. The bill was then treated as a petition for an interpleader under the act, and the court having found it sufficient made an order wherein it directed that the two claimants to the fund interplead as to the subject-matter of the action and that the defendant should pay the money into court and be relieved and discharged of further proceeding and liability by reason of holding the money as such stakeholder, and it further ordered that a feigned issue be filed......to determine'the right of property in said fund. The order followed the act of assembly. It empowered the court to make rules and orders in the cause for carrying out such proceeding to full and complete effect. The appellant argues that the court should not have granted the interpleader or awarded a feigned issue; but we do not feel that the court abused its discretion in making this order: “a feigned issue is in form a complete action, and whether it shall be granted is largely a matter of discretion with the court”: Knowles, Appellant, v. Jacobs, 4 Pa. Superior Ct. 268, and authorities there cited. This court may inquire into the discretion exercised and if there is a technical abuse of it in granting an issue, this abuse may be corrected: Book v. Sharpe, 189 Pa. 44, and the right is recognized in DeZouche v. Garrison, 140 Pa. 430; McSorely v. Coyle, Appellant, 40 Pa. Superior Ct. 560. Objection is raised that the rule to show cause was not served on Haney, one of the parties. Though Haney may not have been personally served with the rule to appear and answer, he was present in court and represented by counsel, and is the only one who could take advantage of such failure. The court in its finding states that Haney was served. Under the act the only order the court could make on the petition was one either refusing or granting the inter-pleader, and in this collateral matter a judgment could not have been entered in appellant’s favor on the petition for a feigned issue. Without discussing whether after the order made defendant was required to file an affidavit of defense in the action of assumpsit, it did file one in which it specifically set forth the claim made by the defendant, Haney, and on which that defendant rested his title to the fund. It was a complete answer to the plaintiff’s statement. It was not necessary for the defendant to set forth its testimony in detail or that it expected to prove the facts set forth in the affidavit by witnesses other than Haney.

The assignments of error are overruled and a procedendo awarded.