Orr Water Ditch Co. v. Larcombe , 14 Nev. 53 ( 1879 )

By the Court,

Hawley, J.:

A bill of interpleader proper lies onlywhere two or more persons claim the same debt or duty from the complainant. In the language of the court in Dorn v. Fox: “In a strict bill of interpleader the following ingredients are necessary: 1. Two or more persons must have preferred a claim against the plaintiff. 2. They must claim the same thing, whether it be a debt or duty. 3. The plaintiff must have no beneficial interest in the thing claimed. 4. It must appear that he can not determine without hazard to himself, to which of the defendants the thing, of right, belongs.” (61 N. Y. 268; Hathaway v. Foy, 40 Mo. 540; Cady v. Potter, 55 Barb. 463; Long v. Barker, 85 Ill. 432.)

Applying these rules to plaintiff’s complaint, it is apparent that it can not be treated as a bill of interpleader. It is somewhat difficult to determine the real character of the complaint. It is, to say the least, very carelessly drawn. It seems to have been the intention of plaintiff’s counsel to prepare a bill of interpleader; but as soon as objections are made to it as such, he admits its insufficiency and then claims that he is entitled to have it sustained as a bill in the nature of an interpleader.

One of the distinguishing features in bills in the nature of an interpleader seems to be that the complainant may seek some relief against the respective claimants to the propérty. In order to maintain a bill in the nature of an interpleader, where the plaintiff is entitled to equitable relief against the owner of the property, it must also appear that the legal title thereto is in dispute between two or more persons, and that plaintiff can not ascertain to which of said parties it actually belongs. (The Mohawk and Hudson River Railroad Co. v. Clute, 4 Paige Ch. 385; 2 Story’s Eq. Jur., see. 824.)

The complaint in this action caD not be treated as a bill in the nature of an interpleader. From the facts alleged it may be that the plaintiff could sustain a separate and independent cause of action against both of the defendants; but there is nothing in the case, as stated, which would authorize the plaintiff to compel the defendants to litigate their respective rights to the property in question in this proceeding.

It may be that the court did not err in overruling the special demurrer interposed upon the ground that the complaint was ambiguous, uncertain and unintelligible, because the real objections to the pleadings were not therein particularly specified; but, be that as it may, it is evident that the court, in treating the complaint as a bill of interpleader, did err in rendering a decree in favor of the defendant Larcombe upon the pleadings and testimony, • without allowing the plaintiff to introduce evidence, as requested, to show, if it could, that the defendant Larcombe was not entitled in any event to a decree for more than thirty-five inches of water. If the complaint, in terms, admitted that the defendant Larcombe was entitled to one hundred inches of water, as claimed by his counsel, then it did not state facts sufficient to constitute a cause of action, and the suit ought for that reason to have been dismissed. But the complaint, when read entire, does not expressly admit that Larcombe is entitled to one hundred inches of water by virtue of his interest in the ditch derived by the deed from Alonzo Dodge, executed on the eighth day of November, 1871, but, on the other hand, it alleges that by reason of the failure of Alonzo Dodge to complete the ditch, and by reason of its completion by Henry Orr, under the agreement of March 5, 1872, the said Larcombe was entitled, if at all, to only thirty-five inches of water.

The complaint is ambiguous, indefinite and uncertain in this, that it does not state what portion of the ditch was completed under the original contract with Alonzo Dodge and what portion thereof was constructed by Henry Orr under the second agreement. It is inconsistent in this, that although it alleges that the plaintiff is ignorant of the respective rights of the defendants, and hence is unable to determine which of said parties is entitled to the interest of Alonzo Dodge in said ditch, it sets forth with minuteness of detail all the facts upon which each of the defendants rely to substantiate their respective claims.

Treating the complaint as a bill of interpleader the court also erred in rendering a judgment in favor of the defendant Orr for his costs. Admitting that it was not erroneous to allow the defendant Orr to answer after his default had been entered, and that his answer or disclaimer shows that he had no interest in the questions involved at the time of filing his answer, yet the plaintiff would have had the right to show, if it could, that his disclaimer was untrue, and that at the time of the commencement of the action, the defendant Orr did claim the certificates of stock referred to, and by virtue thereof did claim an interest in the property as alleged in the complaint.

We are not called upon by this appeal to intimate any opinion as to the respective rights of the defendant Larcombe under the deed from Alonzo Dodge, bearing date November 8, 1871, and of the other parties claiming an' interest in the ditch under and by virtue of the deed executed on the twenty-ninth day of March, A. D. 1875, by Alonzo Dodge to Henry Orr. For the errors indicated the judgment must be reversed and the cause remanded. It may be that under our liberal form of pleading, the plaintiff might be able to amend its present complaint so as to allege facts sufficient to constitute a cause of action against the defendant Lar-combe. /

The judgment of the district court isi reversed, and the cause remanded with instructions to the district court to dismiss the suit unless the complainant moves to amend its complaint so as to show a cause of action against the defendant Larcombe.