Johnson v. Maxey , 43 Ala. 521 ( 1869 )

PECK, C. J.

On the 28th day of December, 1867, the appellee, John W. Maxey, for the use of Elizabeth A. Garrison, commenced an action in the circuit court of Montgomery county, against the Alabama & Florida Rail Road Company.

The complaint consists of three counts. The two first are on an award for the sum of six hundred dollars, dated the 27th day of December, 1866; the third count, is on an alleged account stated.

The first count states, that before the making of the promise therein mentioned, certain differences had arisen, and were then depending between the said plaintiff and the said defendant, touching and concerning damages committed by the said defendant, to certain lots, the property of the plaintiff, (describing the said lots as being in the city and county of Montgomery,) by the extension of the southern slope of the Alabama & Florida Eail Eoad, and the change of the line of said rail road from the route theretofore surveyed across said lots, to the then present projected line, across said lots, known as the “ new track,” &c.; that thereupon, for putting an end to said differences, the said plaintiff and the said defendant, theretofore, to-wit, on the 27th day of December, in the said year 1866, submitted themselves to the award of certain persons therein named, to be made between them, of, and concerning said differences.

That said arbitrators, so named, &o., as aforesaid, took upon themselves the burthen of said arbitrament, and afterwards, to-wit, on the said 27th day of December, 1866, made their award between the said plaintiff and the said defendant, of and concerning the said differences, and did thereby award that the said Alabama & Florida Eail Eoad Company should pay to the said John Maxey, six hundred dollars, as damages, for the extension of the southern slope, and the change of the route of the said rail road to the line as therein designated, running across said lots, of which said award said defendant had notice, <&c., concluding with a promise on the part of said defendant to pay said award, and a breach for failing to do so, <fcc. The second count is substantially like the first, but not quite so full in its statements.

At the June term of said court, in the year 1869, it appears by a bill of exceptions, taken in the case, by appellant, the defendant, the said Alabama & Florida Eail Eoad Company demurred to said complaint. The demurrer no where appears in the record, nor the causes assigned for the said demurrer. The said bill of exceptions states that the said demurrer was sustained by the court, and, thereupon, the plaintiff, by leave of the court, amended his complaint, by striking out all but the first and second counts in the complaint.

The bill of exceptions then states that the defendant, the said rail road company, thereupon filed a sworn plea, suggesting that Matthew H. Johnson, the appellant, claimed the money sued for; that said defendant brought into court, with the said plea, the sum of seven hundred dollars, the amount of said award, in said complaint mentioned, with the interest due thereon from the date of said award, to the time said money was brought into court, &c., as aforesaid.

The said sworn plea, so named in the bill of exceptions, appears by an entry in the record, and is in the words and figures following:

“ Came the parties, by their attorneys, and the amount in controversy, seven hundred dollars, is paid into court by said defendant, and deposited under the provisions of § 2540 of the Code of Alabama, on affidavit of defendant, setting forth that sum of money as claimed by one Matthew Johnson, without collusion with the said defendant. It is ordered by the court, that notice be issued to the plaintiff and said Johnson, to come into court instanter, and propound their claim.”

On the filing, of what is here called a sworn plea, the court caused an entry to be made ; that notices be issued to said Johnson and the said plaintiff, informing said Johnson of the filing of said sworn plea, and notifying him to appear, if he desired to do so, to interpose his claim, and have his right to the said money determined by proper proceedings to be had for that purpose.

These notices were issued and served on said parties, and said Johnson appeared, and an order was made, on his motion, that he be made a party defendant to said suit, and substituted in the place of said original defendant.

To this order, the record shows the said plaintiff objected.

The said Johnson then demurred to the amended complaint, and assigned the following causes of demurrer, to-wit :

1st. That said complaint shows no legal cause of action in favor of Elizabeth A. Garrison:

2d. Because said complaint shows no submission to arbitration, under the seal of said company.

3d. Because said complaint does not show that said arbitrators were sworn before making said award.

4th. Because Elizabeth A. Garrison is the real plaintiff in said cause, and the complaint does not show that she had any interest whatever in said award.

The demurrer was overruled by the court, and thereupon, said Johnson plead the general issue.

This plea does not appear in the record, but the fact is stated in the minute entry of the court. The entry then shows, that a trial was had on said plea, by a jury, who returned a verdict as follows, to-wit: “ We, the jury, find the issues in favor of plaintiff.” Upon this verdict, the court caused the following judgment to be entered : “ It is therefore considered by the court, that the plaintiff have and recover the said sum of seven hundred dollars, paid into court at a previous day of this term, by the original defendant, the same being the amount in controversy in this suit, and that said original defendant, the Alabama & Florida Eail Eoad Company, pay the costs of this suit, which had accrued, up to the time when said sum of money was so paid into court as aforesaid, for which let execution issue; and that said Matthew H. Johnson pay the costs which accrued subsequently to such payment, for which, let execution issue.”

On the trial, on the said plea of the general issue, the plaintiff introduced as evidence, the said award stated in said complaint, which is in the words and figures following, to-wit: “ To all to whom these presents may or shall come, greeting: We, Thomas F. Thomasson, John P-Dickerson, John B. Garrett, and Solomon Pierce, to whom was submitted the matters in controversy between John Maxey, of the city of Montgomery, of the county of Montgomery, and State of Alabama, and the Alabama & Florida Eail Eoad Company, as from the conditions by the parties respectively submitted to us, to assess tbe damages to lot number four (4), in square number twenty (20), in Hanrick’s plat, fronting on Bell street one hundred feet; and lot number five (5), in square twenty (20), in Hanrick’s plat, fronting on Bell street, in the city of Montgomery, in the county and State aforesaid, by the extension of the southern slope of said rail road, and the change of the line of said rail road from the route heretofore surveyed across said lots, to the present projected line across said lots, known as the new track.

“Now, therefore, know ye, that we, the arbitrators mentioned in the said margin, having examined into the matters in controversy, do make this award in writing, that is to say: That the said Alabama and. Florida Rail Road Company shall pay to the said John Maxey, six hundred dollars, as damages for the extension of the southern slope, and the change of the route of the said rail road to the line as above designated, running across said lots. In witness whereof, we have hereunto subscribed our names, this 27th day of December, 1866.

(Signed,) T. F. Thomasson,

Solomon Pierce,

John B. Garrett,

John P. Dickerson.”

To the introduction of said award, said Johnson objected.

1. Because there was no proof that any such submission as that set out in the said award, was ever made.

2. Because there was no proof that the arbitrators named in said award, were ever selected by the parties in said award.

3. Because there was no proof that said award was ever executed or subscribed by the persons whose names were subscribed thereto.

These objections were overruled, the award read to the jury, and the said Johnson excepted.

The said Johnson then offered in evidence, a deed made by said Eliza A. Garrison, to the said Alabama and Florida Rail Road Company, dated the second day of April, in the year 1866, conveying to said rail road company the following described real estate, situated in the city of Montgomery, to-wit: All the portion of lots numbered four and five, in square twenty, Hanrick’s Plat, which lies north of the rail road, to be built, connecting the depots of the Alabama and Florida Rail Road, and the Montgomery and West Point Rail Road, and being that portion which lies between the said contemplated rail road and the Alabama river, as also the land occupied by the excavation on which the said rail road is to be situated.

Said Johnson then offered as evidence another deed, made by said Eliza A. Garrison to said John Maxey, dated the fifteenth day of September, 1866, conveying to him the following described real estate, situated in the city of Montgomery, to-wit: Lot numbered four (4), in square numbered twenty (20), fronting on Bell street, one hundred feet, running back to the river bluff; also, lot numbered five (5), in square numbered twenty (20), situated in Han-rick’s plat, fronting one hundred feet on Bell street, and running back to the river bluff. That portion of the above described lot, lying along and north of the new track of the Alabama and Florida Rail Road, is excepted from the sale, the same having been previously sold to the rail road company.

And he also offered in evidence, a deed for the same real estate, from the said Maxey to himself, dated the seventh day of December, 1866.

It was also proved, that the lots mentioned in the said deed of Eliza A. Garrison, to said rail road, were the lots described in each of the other deeds above named, and that the said Johnson was in possession of said lots when said award was made, and was still in possession of the same.

It was also proved, that the excavation on which said rail road was to run, was not made or commenced at the time of the execution of said deeds, nor was made or commenced at the time said award purports to have been made.

It was also proved by said Maxey, that he neither had any interest in said matter, either before or after, or at the time of said award, but was attending to the matter for the benefit of said Eliza A. Garrison.

The plaintiff then offered to prove by Maxey and Mrs. Garrison, that the line of the lots which Maxey proposed to sell to Johnson, only extended to the south bank of the excavation which was to be made by said road, and that said line was marked by stakes and pointed out to said Johnson, before his purchase of said lots, and was different from the lines mentioned in the deed to the Alabama and Florida Rail Road Company. To the admission of this evidence, the said Johnson objected, but the objection was overruled and the testimony admitted, and the said Johnson excepted.

The plaintiff also offered to prove, that Mrs. Garrison was claiming the damages for injuries to said lots, consequent upon some change of the original survey, and that this fact was communicated to Johnson before his purchase of said lots. To the admission of this evidence, said Johnson objected, and the objection was overruled, the evidence admitted, and he excepted.

The plaintiff also offered to prove, that the arbitration mentioned in the complaint was then pending, and that the fact of such pendency was communicated to Johnson, before he purchased said lots. To the admission of this evidence, the said Johnson objected, his objection was overruled and said evidence admitted.

The court then charged the jury as follows: “ If you find from the evidence that the Alabama and Florida Rail Road Company and the plaintiff, said Eliza A. Garrison, had an unsettled matter between them with reference to the sum of money to be paid by the rail road company to the said Garrison, for damage done to the plaintiff’s land, and you find that this unsettled matter of compensation and damage was agreed to be submitted by the rail road company and the plaintiff Garrison, to arbitration, and the arbitrators to whom the matter was submitted made an award, which award was, that the rail road company should pay over to the plaintiff, Garrison, the sum of $-, as her compensation and damage, which sum of money, so awarded, is now deposited with the clerk of this court; then, I charge you, that you may find for the plaintiff, and assess her damage at the sum awarded by the arbitrators, with the interest thereon from the time of the arbitration and award.”

“If you should find from the evidence, that the plaintiff, Garrison, either before, or since the arbitration and award, transferred or assigned, by deed or otherwise, the sum of money awarded to her, or about to be awarded to her by the arbitrators, to the claimant, Johnson, who makes himself a party to this suit, under the statute, and puts himself in the place of the Alabama and Florida Eail Eoad Company, as a party defendant, on the record; then, you may find for the claimant, Johnson, that he is entitled to the sum of money so awarded, and now deposited by the rail road company, in this court, with interest thereon from the time of the award.”

The claimant, Johnson, by his counsel, asked the court to charge the jury, that if they believed the evidence, they must find for the defendant, which charge was refused, and he excepted.

He appeals to this court, and assigns for error : 1. The overruling of the demurrer; 2. The matters and things, as set out in the bill of exceptions.

1. We have thought proper to make this extended statement from the record, believing the opinion of the court will be thereby the better understood.

Section 2540 of the Eevised Code, under which this proceeding is had, declares, that “ a defendant against whom an action is pending, upon any contract for the payment of money, may, at any time before issue is joined, make affidavit in writing, that a person not a party to the action? and without collusion with him, claims the money in controversy, and deposit the money in court, praying an order that the person so claiming the money be substituted in his place. The court must, thereupon, direct notice to be given to the claimant of the money, and the plaintiff, and may, in its discretion, after such notice has been served, make the order prayed for; and, thereupon, the substituted defendant stands in the place of the original defendant, and the latter is discharged from liability.”

2. The first question that seems to present itself for consideration is this : is the defendant in this case such a defendant as can be admitted to the benefits of this law ? We understand said defendant to be a corporation. Can a corporation make tbe affidavit required by this section of tbe Oode, to authorize proceedings under it ? A corporation is a mere artificial person, without conscience, and as such, can not make an affidavit.

3. Is the award, upon which this action is brought, a contract for the payment of money, within the meaning of this section ? We are strongly inclined to the opinion it is not.. It seems to us, the only contracts that will authorize proceedings under this section, are contracts for the payment of money made by the parties themselves, or by those whom they may represent. An award, for the payment of money, like, a judgment, is in a very limited and restricted sense, a contract, and like a judgment, it contains no promise of the party to pay. We do not intend to dispose of these questions now, as this case can be decided without it.

When the defendant in this ease made the affidavit, that the money in controversy was claimed by a person not a party to the action, and deposited the money in court, what was the legal effect of this affidavit, and the deposit of the money in court, upon the rights of the plaintiff, and the liabilities of the defendant ?

We hold it was a conclusive admission, on the part of the defendant, of all the material allegations made in the plaintiff ’s complaint; that it was an admission, that certain differences had arisen, and were depending between the said plaintiff and defendant, touching and concerning certain damages, alleged to have been committed by the said defendant, to certain lots, the property of the plaintiff, as stated in the plaintiff’s complaint; that these differences were submitted by the plaintiff and defendant for settlement, to the arbitrament and award of the arbitrators therein named; that said arbitrators took upon themselves the settlement of these differences, and made the award as stated, and on the day stated. That said award was a legal and valid award, and that said defendant was liable to pay the money so awarded, to said plaintiff, or to the person named in said affidavit, as claiming the same.

We hold, further, that when the said person so stated by said affidavit, as claiming said money, came into court under the notices issued for that purpose, and was made a party to the action, in the place of said defendant, the said rail road company, the only matter that could be litigated between him and said plaintiff, was whether the money, so brought into court, belonged to him, or to said plaintiff; that the said rail road company had, by mating said affidavit and depositing the money in court, admitted that it "belonged to either the one or the other, and was claimed by both. The substituted defendant could not deny the liability of the said rail road company to pay said award— could not litigate that question. That was settled by the admissions of said rail road company, so made as aforesaid ; neither could he deny the sufficiency of the plaintiff’s complaint, and, consequently, could not demur to the same.

The payment of money into court, is an admission of the cause of action as alleged in the declaration, and the plaintiff is entitled to the amount paid in, although he may have gone to trial and suffered a non-suit, or a verdict have been rendered against him, or after verdict in his favor, the judgment may have been arrested.

The payment of money into court, under a rule of court, being a payment of record, the party can never recover it back again, though it afterwards appear that he paid it in wrongfully.—1 Dunlap’s Pr. 424.

It was the duty of said substituted defendant, when he came into court as aforesaid, and for the purposes aforesaid, to have propounded his claim to the money so deposited to the court, in writing, by setting it forth with such certainty and fulness, with all necessary averments, so that the plaintiff might know in what it consisted, and be enabled to plead to, or answer it, as he might be advised. In other words, an issue should have been made up under the direction of the court, for the purpose of trying which of said parties the said plaintiff, or said claimant, had the better right to said money ; that the court, by its judgment, might determine to whom it belonged, and order it to be paid accordingly. But the claimant in this case did not propound his claim at all, nor did he, as far as the record shows, set forth any claim to the said money. He first demurred to the plaintiff’s complaint, which, as we have stated, he could not do ; the court, therefore, properly overruled the same.

The record shows, he then plead the general issue to the complaint. This he couH not do; he could not litigate with the plaintiff, or compel the plaintiff to litigate with him, the liability of the original defendant, the said rail road company, to pay the said award, and that was all that could be tried under the plea of the general issue. There” was, however, a trial had, under that plea, and the jury found the issue in favor of the plaintiff, and judgment was rendered on that verdict, that the plaintiff have and recover the said sum of seven hundred dollars, deposited in court, &c., as aforesaid, being the sum in controversy in said suit, and a judgment for costs was rendered against the original defendant, that had accrued up to the time said money was deposited in court, and against the claimant, said Matthew H. Johnson, for the costs that had accrued sine© said deposit.

We hold that this trial was altogether irregular, and legally proved and settled nothing touching the claim or right to this money, by said Johnson; and it did not and could not show that the said rail road company was, or was not, liable to pay said award. The liability of said ¡rail road company to pay said award, was admitted of ¡record, by the deposit of the money in court, and the affidavit filed; that it was claimed by a person not a party to the action. It did not and could not show the money belonged to said claimant, because that question was not an issue. If the verdict on that trial had been in favor of said plea, it would have been the duty of the court, notwithstanding the verdict, to have rendered a judgment for the plaintiff, non obstante verdicto.—2 Dunlap’s Pr. 671, 690,

For these reasons, it is unnecessary to examine the errors alleged to have been committed on said trial. If they exist, they do not injure the said claimant. The said issue was an issue tendered by himself, and under it, there could be no trial that would legally affect his interest, if any he had, in or to the said money so deposited in court, as aforesaid, because he had not propounded his interest, and, consequently, no issue was made, or tried, to determine whether he had, or had not, a better claim to said money than the plaintiff.

By depositing the money in court, it was .thereby admitted the same belonged to the plaintiff, unless the person named in the affidavit of the original defendant, as claiming the same, should show a better right.

This was not done by the trial under the said plea of the general issue; therefore, the judgment of the court, that it belonged to the plaintiff, is right.

This section 2540 of the Eevised Code was, no doubt intended to enable parties, in the cases embraced in it, to have a cheap and summary remedy of interpleader, in a law court, without having to resort to the more tedious and expensive remedy, by bill of interpleader, in a court, of chancery. There are acts of the legislature, both in New York and England, very analogous to this section 2540 of the Code, and it has been held by the courts in both countries, that to entitle parties to the remedy provided by said acts, the case must be of a character as to authorize the filing of a bill of interpleader in a court of equity.—Sherman et al. v. Partridge, 11 Howard’s N. Y. Practice Reports, 154, 158. In that case, the court says: “ The provisions of the Code, like those of the English statutes, were certaiuly not designed to introduce new cases of interpleader, but merely to enable defendants, in cases where an interpleader is proper, to relieve themselves, by a summary proceeding, from the delays and expense of a formal action.”

We think this should be held to be the construction of said section 2540.

It is very clear, we think, the original defendant could not have filed his bill of interpleader, in this case, against the plaintiff, and said alleged claimant, Johnson, for two reasons — 1st. Because the award is conclusive evidence that the money so awarded belonged to the plaintiff, even if it be admitted that the lots alleged to be injured, did not belong to said plaintiff, for, in such case, the defendant, the rail road company, should have set that up, as a defense, before the arbitrators.

2d. Because, if the lots really belonged to said claimant, Johnson, his remedy for any injury to them by said rail road company, is against said company, and such remedy could not be affected or defeated by the recovery of plaintiff before the arbitrators, for the reason that he was not a party to said proceedings; and, therefore, his right could not be prejudiced by a proceeding to which he was not a party. Besides all this, the evidence on the said irregular trial, introduced by said claimant, did not, and does not, show that said claimant has any legal interest whatever to the money awarded to the plaintiff, &c., as aforesaid.

Upon the whole case, we can discover no errors that the appellant has any cause to complain of. The judgment of the court below is, therefore, affirmed, at the costs of the appellant.