Vassiliades v. Theophiles , 115 S.W.2d 1220 ( 1938 )

GRISSOM, Justice.

John Theophiles sued Andrew Vassiliad-es for debt and procured the issuance of a writ of garnishment directed to the Sussex Fire Insurance Company of Newark. Judgment in the main case was for the defendant.

The Insurance Company, garnishee, answered and therein filed a bill of interpleader admitting liability on an insurance policy in the sum of $1525, which sum it tendered into court. It alleged that it had issued a fire insurance policy covering certain articles in a restaurant operated under the name of Andrews Cafe, which restaurant was owned by the defendant Vas-siliades and his partner. The restaurant burned. The garnishee alleged that certain persons had made claims for the proceeds of the insurance policy as creditors and assignees of the partners and Vassiliades. It prayed that all claimants be impleaded and their respective rights to the fund be determined. The judgment in the interpleader suit of the garnishee ordered distribution of the fund among various claimants and ordered payment of garnishee’s attorneys’ fees and certain costs amounting to $11.80, apparently incident to the interpleader’s suit, paid out of the fund.

The payment of $75 to the attorneys for the garnishee, and said court costs out of the fund paid into court by the interpleader garnishee, is assigned as error. The judgment is not in any other respect complained of.

It is apparent that the answer of the garnishee impleading the claimants to the fund was necessary and proper; that it acted honestly and promptly; that it did not contest its liability on the policy, but admitted same and paid said sum into court; and that it occupied the position of an innocent stakeholder, taking no part in the contest between the respective claimants of the fund. Under such circumstances the garnishee interpleader was, we think, entitled to have the reasonable attorneys’ fees fixed by the court and its costs paid out of the fund. 33 C.J. p. 469.

Appellant contends that he was the successful party to the suit and, since the plaintiff failed to recover anything against him, the interpleader’s costs and attorneys’ fees were improperly paid out of the fund, such action having the effect of causing the appellant to pay it, and that said costs and attorneys’ fees should have been adjudged against the plaintiff.

In 25 Tex.Jur. § 11, p. 62, it is said: “Ordinarily a mere fundholder or stakeholder is not liable for the costs of the suit; he is, however, entitled to his own costs, which include reasonable attorney’s fees for preparing and filing the bill of interpleader — provided they were properly incurred and were asked in the petition. These costs are usually awarded from the fund in controversy, rather than taxed against the unsuccessful claimant, although as a general rule, the costs as between the contending claimants must ultimately be paid by the unsuccessful party.”

In Halloran v. Abilene State Bank, Tex.Civ.App., 15 S.W.2d 1056, 1060, this court held that an innocent stakeholder was entitled to his costs and attorneys’ fees “out of the fund in controversy, which costs, as between the parties contending for said fund, must ultimately be paid by the unsuccessful party. Nixon v. New York Life Insurance Co., 100 Tex. 250, 98 S.W. 380, 99 S.W. 403; Beilharz v. Illingsworth, 62 Tex.Civ.App. 647, 132 S.W. 106; 4 Pomeroy’s Equity, § 1480.”

We are of the opinion that the attorneys’ fees allowed the garnishee interpleader and the costs incident to the interpleader were properly paid out of the fund paid by the garnishee into court. If the appellant were entitled, as the successful party, ultimately to be reimbursed therefor by the unsuccessful party, it was essential that by proper pleading he ask therefor. This the appellant did not do. Therefore, the question of whether or not appellant is so ultimately entitled to be reimbursed is not presented for our decision. It was, in effect, so decided in Wilke v. Finn et al., Tex.Com.App., 39 S.W.2d 836, 840.

The judgment of the trial court is affirmed.