McElroy v. Baer , 1 How. Pr. (n.s.) 340 ( 1886 )

Per Curiam.

It is settled by the decisions of this court, in Rauch agt. Dreyer (3 Daly, 434), and Beer agt. Benner (11 Daly, 229), tbat tbe statutory interpleader, wbicb is not in the nature of a suit in equity, but a remedy designed for use in common law courts (see the English statute, entitled 1 and 2 Wm. IV., chap. 58; 23 and 24 Vict., chap. 126), is a measure of relief to wbicb suitors in a district court in tbe city of New York may resort It is to be regretted tbat when tbe framer of section 122 of the old Code of Procedure borrowed from tbe English statutes tbat we have mentioned tbe idea of permitting a defendant in an action at law to obtain in a summary way in tbat action tbe same rebef tbat be might obtain by filing a bib of interpleader in a court of equity, be did not at tbe same time borrow 'the procedure wbicb those statutes created.

Tbe consequence of borrowing only tbe rebef and of omitting to provide a way by which tbat rebef can be attained, has been to throw upon tbe courts of this state tbe necéssity of framing for themselves a system of practice tbat will make tbe statutory interpleader effectual. One of tbe first efforts in that direction was made in tbe case of Van Buskirk agt. Roy (8 How. Pr., 425), in which, the court directed that the order should provide that if the party interpleaded did not appear and defend the action within twenty days after the service upon her of a copy of the complaint, together with a copy of the order of interpleader, the money in court should be paid to the plaintiff. The Code nowhere provided for these proceedings, but they were adopted because in no other way could effect be given to the intent of the legislature in creating the remedy of an inter-pleader in a common law action. Perhaps the action of the court might be called judicial legislation.

Again, in Lawrence agt. Wilson (8 Hun, 593), the court said: “As the Code prescribes no mode- of proceeding under this section, the practice under it should be, I think, as far as practicable, that adopted by the courts of equity in cases of inter-pleader in analogous cases.” Thp court then recommends that the practice be such as is suggested by Moak's Van Santvoord's Pleadings, 358.

We see the wisdom of the course recommended by the court in the case last cited, and are of the opinion that in the district courts, after .the order of interpleader is made, a copy of the order and a copy of the complaint, drawn in conformity with the suggestion made in Moak's Van Santvoord's Pleadings, should be served upon the party brought in by the interpleader. The order should require him to appear and answer the complaint in the same time that a defendant is required to answer a summons, and should provide that the money in court shall be paid to the plaintiff in case of the failure to appear and answer of the party who is interpleaded. If the party appear and answer the issue raised may be tried by the court, unless a jury be demanded at the time of the joinder of issue. Upon the entry of judgment the money must be paid to the prevailing party, nnless an undertaking sufficient to stay proceedings be given, and costs should be awarded against the losing party. It may be that Baer and Bronner intentionally abandoned the case when the district court decided that they should be brought in by interpleader, but we are not able to say that such was their intention. It is possible that they left tbe court because they did not expect any further proceedings without some further notice. We prefer to place that interpretation upon their acts, because they have not as yet had an opportunity to show their rights to the money, in controversy.

.Of course Dr. Howe is discharged from all liability, and he has no interest in or concern with the litigation that followed or may follow the payment by him of the money into court. We think it proper to reverse the judgment and order a new trial, with costs -to abide the event. Let th,e district court amend its •order so that Baer and Bronner shall answer in the usual time. Then let the plaintiff serve upon them a new complaint, drawn in conformity with the suggestions already referred to. If Baer and Bronner fail to appear, let judgment be’entered establishing the right of plaintiff to the money. If they appear and answer, let the issue be tried and the money awarded to the prevailing party.

The reversal of the judgment leaves the plaintiff without any .adjudication in his favor as to his right to the money, and exposes him to liability to an action to be brought against him by Baer and Bronner for the money that was paid to him under the judgment that has been reversed.

Judgment reversed and a new trial ordered as between the plaintiff and Baer and Bronner, with costs to abide the event.