Florida East Coast Ry. Co. v. Eno , 99 Fla. 874 ( 1928 )

The appeal now under consideration is from an order overruling complainant's exceptions to portions of the answer of St. Augustine National Bank, one of the defendants. No appeal was taken from the order overruling the defendant's demurrer to the bill. This appellant, complainant below, can not complain of the latter order, for it was in complainant's favor. The appellee bank can not complain of that order because it has taken no appeal therefrom, nor filed any cross assignments of error.

If the subject matter of the bill was such that it was entirely without the field of equity jurisprudence, a situation which would negative the foundation of complainant's right to equitable cognizance and relief and which would constitute what is frequently termed a lack of equity "jurisdiction," this Court would be justified, even on this appeal, in noticing such fundamental defect and ordering the bill dismissed, even though the point had not been raised by the pleadings. Trustees of I. I. Fund v. Gleason, 39 Fla. 771; 23 So. R. 539.

In my judgment, however, that is not the situation here before us. When labor has been performed upon property, or materials furnished, through a contractor under circumstances which entitle those performing the labor or supplying the materials to a lien on the property to be satisfied out of the funds due by the owner to the contractor, and when without fault on the part of the owner conflicting claims are asserted by the contractor's assignee and the laborers and materialmen, amongst themselves, as to who is entitled to the sum due and unpaid by the owner to the contractor on account of such work, a controversy in which the owner has no interest, the owner may bring such fund into court and maintain a bill of interpleader against the conflicting claimants to compel them to determine between themselves their respective rights and priorities.

Such a bill falls within recognized limits of equity cognizance and satisfies the requirements laid down by the best authorities for sustaining the equitable remedy of interpleader. Lowry v. Downing Mfg. Co., 73 Fla. 535, 74 So. R. 525; Grand Haven etc., v. Western, 31 Mich. 85; Newhale v. Kastens, 70 Ill. 156; Atchison, etc., v. Scoville, 13 Kan. 17; Clark v. Saloy, 2 La. Ann. 987; Illingworth v. Rowe, 28 Atl. R. 456; Brunetti v. Grandi, 104 Atl. R. 139, and cases cited; Lapenta v. Lettieri, 44 Atl. R. 730, 77 Am. St. R. 316. See generally 4 Pomeroy's Eq. Jurisprudence (3rd Ed.), Sec. 1322.

In my opinion, the utmost that can be said against the soundness of this bill is that it is multifarious in that the indebtedness due and owing by the owner to the contractor, as to which the interpleader is sought, is made up of five separate, distinct and independent funds, arising from as many independent contracts, each fund being separate and distinct from the other, and the claims of the several defendants being not common to all the funds, there being five sets of creditors asserting separate and unrelated claims against the several funds, besides the bank which asserts its claim to be prior and paramount as to all the funds.

Even if that situation renders the bill multifarious, it would constitute merely a ground of demurrer, and although the objection, when seasonably asserted by one entitled to raise the point, might be fatal to the bill because the several sets of claims are not in privity nor derived from a common source, the subject matter of the bill, though the latter be multifarious, would still be within the established field of equity cognizance. And in my judgment this is true even in view of the restricted scope of the equities which underlie the right to interpleader. The bill could be amended to cure the defect. In Malone v. Meres, 109 So. R. 677, it was held that courts of equity have general jurisdiction or power to enforce liens, and even though in a particular case the chancellor, having jurisdiction of the parties and the subject matter, holds that a written instrument affords a lien, still when properly interpreted and taken in connection with proper allegations and permissive proofs concerning its import or intended purpose the instrument affords no lien, but nevertheless a decree is rendered in the cause decreeing the existence of and affording a lien in the premises, such decree is not void for want of jurisdiction or power to render it, though the decree may be erroneous and subject to reversal on appeal duly taken. It seems to me that the principle just stated applies to this situation. A bill of interpleader being a proper matter of equitable cognizance, the chancellor has the power to decide that the bill is good as against demurrer, and even though that decision be erroneous and the court erroneously proceeds after proper objection taken, the final decree would not be void. The order on demurrer, if erroneous, might be subject to reversal on a direct appeal therefrom, or upon an appeal from the final decree, but it can not be reached collaterally or upon an appeal from another interlocutory order. Malone v. Meres,supra; Peck v. Beloit Sch. Dist., 21 Wis. 516, 21 C. J. 34, 162.

Ordinarily the objection of multifariousness goes to convenience rather than to the merits and where the controversies involved can be determined as well in one as in several suits, and that procedure does not interfere with the proper administration of justice, an objection for multifariousness is not ordinarily allowed. Mountein v. King, 75 Fla. 12, 77 So. R. 630; Farrell v. Forest Inv. Co., 73 Fla. 191, 74 So. R. 216. In interpleader, the defendant by failing to interpose timely objection, as is the case here with all defendants except the bank, may waive the objection that the bill does not make out a proper case for interpleader and the court may proceed to decree an interpleader even though a demurrer on that ground might have been sustained if seasonably interposed. 33 C. J. 446. So the objection of multifariousness is not a fundamental one in the sense that it deprives a court of chancery of the power to entertain the bill, even under the exacting requirements of the rules applicable to interpleader. McGinn v. Interstate Bank, 166 So. W. R. 345.

It is well settled that the objection of multifariousness or misjoinder is a personal one, and that only a defendant that is prejudiced thereby may complain. Mountein v. King,supra. The only defendant demurring to the bill is the bank. Since the bank claims its assignment to be paramount and superior to the claims of all the materialmen and laborers under all the contracts, and since the bank is interested and relief is sought against it in every phase of the controversy, it is difficult to see how it is prejudiced in the premises, by having the entire controversy adjudicated in one suit rather than in several.

Being of the opinion, for the reasons stated, that the bill should not be dismissed on this appeal, I dissent.

BROWN, J., concurs.