Supreme Council of the Legion of Honor v. Palmer , 107 Mo. App. 157 ( 1904 )

GrOODE, J.

(after stating the facts.) — The sufficiency of the bill of interpleader is attacked in this court on the ground that it fails to show color of title to the fund in controversy in any one but Matilda Palmer; that it conclusively appears from the bill she was entitled to the fund and that the other claimants Alfred Henry, Frederick and Herbert Palmer had no interest in it because they were not dependent heirs of the insured member, while Matilda Palmer was a dependent heir. The bill does not say Matilda Palmer was a dependent heir, but only shows the fund was claimed for her as the only dependent heir by her curatrix and that her right was questioned by the English children of the deceased on the ground that she was an illegitimate child. But no point was made against the sufficiency of the petition in the court helow. All the claimants acted on it as if it were sufficient, filed their interpleas and went to trial, and the present demand that the judgment be reversed because of insufficient allegations is unseasonable. The fund was paid into court on the petition as filed and the case was tried, not on that petition, but on the pleadings of the rival claimants. It is out of the question to reverse the judgment and throw the costs on the respondent simply because some necessary allegation may have been omitted from its petition which could have been supplied if the pleading had been challenged before trial. The point was ruled in Heusner v. Mut. Ins. Co., 47 Mo. App. 336; however, we think the-petition is good after judgment.

This court has given very great consideration to the contention of counsel for the appellant that the bill of interpleader was not filed by the Legion of Honor in good faith and out of fear of legal proceedings by the different claimants of the fund, but was filed by the attorney of that order for the purpose of obtaining a fee .out of the fund. Bills of this kind by insurance companies are rather frequent and it is apparent a temptation to abuse the remedy exists. They ought not to be tolerated except when justified by the principles of equity, out of which they originally grew. We ask first, what are the conditions on which such a bill may be filed? The question is answered by eminent writers on equity as follows: The same debt, fund or thing must be claimed by hostile parties under adverse titles derived from a common source; the interpleader must be a mere stakeholder with no interest in the subject-matter, must have incurred no liability to either of the claimants personally and must stand exposed to the risk of being vexed by two or more suits for the fund or other subject-matter in dispute. It is not, of course, necessary that he shall be liable to two judgments; for he can not he unless he has assumed inconsistent obligations, and in that instance a bill of interpleader will not lie. The essential purpose of the bill is to- protect an indifferent holder of a fund or bailee of an article, from the annoyance and expense of separate actions to recover what he is willing to pay. These views are taken from 3 Pomeroy, Eq. Jur. (2 Ed.), secs. 1319, et seq., and 2 Story’s Eq. Jur., chap. 20. The Legion of Honor stood ready -to pay the insurance money to the rightful .claimant, was without interest in the matter and the claiming parties deduced their respective rights from the same source, to-wit; the contract of the order with their deceased father.

The next question is one of fact and relates to whether the order had reasonable ground to apprehend an action by the English children, as well as by the curatrix of Matilda; for this proceeding is not maintainable unless there is a well-founded apprehension of this character. Blair v. Porter, 13 N. J. Eq. 267. Much insistence is laid by appellant’s counsel on the fact that Matilda and no one else is entitled to the fund and-the order was in no danger of having to pay it to any one but her. This is true in every case where a bill of inter-pleader lies. The remedy proceeds on the assumption that while two or more persons claim, only one is entitled. There must be doubt about the rights of the parties and a sufficiently vigorous assertion of a right by each, to put the indifferent stakeholder in danger of paying the fund to the wrong party if he decides the matter himself, and in danger of being sued by all the parties if he takes no step. The circumstances connected with this case, though they do not leave the appellant’s position without plausible support, have failed to convince us the- petition was filed for a purpose ulterior to its averred one. That question was passed on by the trial judge and his conclusion should have weight with us, as the evidence might reasonably lead to either conclusion as to what the truth is. It is certain that two of the older children, Herbert and Frederick, who resided in Cheltenham, England, corresponded with Mr. H. J. Bliss, an attorney of this city, with respect to their interests and entrusted them to his care, and that their brother Alfred, who resided in St. Louis, followed their lead. On further investigation of the‘case, but not until after an order to interplead had beep, entered, an answer filed in behalf of those English children and depositions taken in support of the answer, Mr. Bliss advised the withdrawal of their claim, and it was withdrawn at the hearing of the case below. We find little, if anything, in the record to indicate that the two sons who were in England had any other intention prior to receiving that advice, than to press their demand. They surely had that intention when the order filed its petition. The main source of the suspicion entertained concerning the good faith of the proceeding, appears to be interviews that occurred between Alfred Henry Palmer and the attorney of the order before the bill was filed. The theory of appellant’s counsel is that said attorney prompted said Alfred to assert a claim; and it is true that son said on the witness stand that the attorney told him he thought the English heirs had a claim. But Alfred did not call on the attorney of the order at the latter’s suggestion, but on his own motion. At their first interview he said he did not know whether he and the English heirs would assert a claim or not. He after-wards refused to disclaim, as the evidence goes to show that Mr. Moss, attorney for the order, insisted he should. In this predicament Mr. Moss prepared a notice of claim and Alfred Henry signed it. It should be remembered that the two brothers in Cheltenham had employed Mr. Bliss and their interests were in his hands before these interviews between Mr. Moss and Alfred Henry Palmer occurred. In the light of those facts we think it sufficiently appears that the Legion of Honor was threatened with proceedings for the fund by the different heirs to preclude us from overruling the decision of the lower court on the question. It is contended Matilda Palmer’s right was clear and that by reasonable inquiry the order could have ascertained it was. That is not the important point. If the order was in danger of being harassed by different suits, it had a right to protect itself against that expense and trouble by filing this bill and compelling the claimants to litigate the matter between themselves. 2 Pomeroy, supra.

The judgment is affirmed and the cause remanded with directions to the circuit court to award and cause to be paid to Ella J. Palmer, curatrix of Matilda Palmer, the fund of $2,000, less attorney’s fee of $125, allowed by the circuit court, and the additional attorney’s fee of $50 allowed by this court, and to- render judgment that she recover of and from Alfred Henry, Frederick Joseph and Herbert Palmer her costs expended in the circuit court, including the fee of $125 allowed the plaintiff’s attorney by the circuit court, and to award execution therefor.

Blcmd, P. J., and Reyburns J., concur.