Hamilton Nat. Bank v. Woods , 34 Tenn. App. 360 ( 1948 )

ON PETITION TO REHEAR. Plaintiff-in-error, Hamilton National Bank, has filed a petition to rehear predicated generally upon the grounds that the judgment rendered in favor of Maribelle Woods was erroneous, that she was a stranger to the cause and was not entitled to intervene therein; that she demonstrated no interest in the subject matter of a suit for the recovery of property as is contemplated under the provisions of Section 8623 of the Code of Tennessee. Specifically, it is said:

(1) "That this court erroneously held that, inasmuch as the money once belonged to Maribelle Woods (which we do not admit except for the argument), it was still her money, and the plaintiff-in-error (petitioner here) was not concerned with what was done with it. . . ."

(2) "The Court erred in stating and deciding that the answer of Chandler King was the gravaman of the present suit. . . ."

(3) "The Court erred in finding and holding that the answer of King was filed in the nature of an interpleader. . . ."

(4) "The Court erred in holding, at least impliedly, that it was proper for Maribelle Woods to intervene in this case and ask for a new trial so far as concerned the final judgment which was rendered in the scire facias proceeding, . . ."

(5) "It was also error for a judgment to be rendered against King, and in favor of Maribelle Woods, for this sum of $777.73; and this Court should have held such to be error."

We have carefully considered the petition and although the propositions therein presented have been ably and exhaustively briefed, there appear to be no matters presented which were overlooked by the Court in its former consideration of the case, nor does it appear that new authority is adduced which is decisive of the issues in controversy as opposed to the opinion previously filed. Such is the criteria on which petitions to rehear are considered. Gulf, M. O.R. Co. v. Underwood,182 Tenn. 467, 187 S.W.2d 777; Jones v. Witherspoon, 182 Tenn. 498, 187 S.W.2d 788; Estep v. State, 183 Tenn. 325,192 S.W.2d 706; City of Knoxville v. Hargis, 184 Tenn. 262,198 S.W.2d 555; Louisville N.R. Co. v. United States Fidelity Guaranty Co., 125 Tenn. 658, 148 S.W. 671.

In our opinion, the present issues are quite different from those involving the principles annunciated in the authorities relied upon by the petitioner, Hamilton National Bank.

In the instant case, the garnishee, answering the garnishment, stated, "This defendant is not and was not at the date of the service of the writ of garnishment upon him indebted to M.S. Woods in any amount." He qualified such statement by disclosing the circumstances under which he was paid a sum of money by Maribelle Woods in purchase of a note, subsequently held by this court in a former proceeding to have been paid and extinguished prior to endorsement over to the latter; and he submitted ". . . the facts to the Court for its judgment thereon as to whether he is indebted to or has in his possession or control any choses in action or other legal or equitable interest to which the said M.S. Woods may be entitled". Hence, the question as to whether the money paid in purchase of the note was in fact advanced by M.S. Woods became the issue for determination by the Court.

While the garnishee's answer does not conform to the requisites of an interpleader, which in the strict sense is a creature of equity, it is nevertheless in the nature of an interpleader. Maribelle Woods was not made a party to the proceeding in the first instance, but the plaintiff and judgment creditor was notified of the existence of the adverse interest and Miss Woods was, subsequent to the first adjudication but while the judgment was still under the jurisdiction of the trial judge, permitted to intervene.

As pointed out, the pleadings do not present a pure interpleader, but rather the action partakes of a dual character, in which certain recognized principles, both of law and of equity, arise.

Sections 8623 and 8624 of the Code of Tennessee provide:

"New party may intervene as defendant. — In actions for the recovery of property, any person not a party thereto, on showing himself interested in the subject-matter of the suit, may be allowed to appear as defendant therein."; and,

"Defendant may substitute another, surrender property, and be discharged. — At any time before defense made, the defendant may apply to the court or justice to substitute in his place any person, not already a party, who claims the money or property in suit, by filing his affidavit, stating the facts on which he founds his application, showing that the right in the subject-matter in controversy is in such third person; that he (affiant) has no interest in the suit, and may be exposed to the claim of two or more adverse parties, denying all collusion with the party sought to be substituted, and proffering to pay the money or deliver the property into the custody of the court. If, on notice to the plaintiff and the person sought to be substituted as defendant, sufficient cause be shown, the court may order the substitution and discharge the original defendant, from liability to either party, and make such disposition, pending the suit, of the fund or property in controversy, as to secure the money, property, or its value, to the party who shall prove to be entitled. (1857-58, ch. 56, sec. 1.)"

If these provisions are to apply in any given case, it must be conceded that the action shall be one for "the recovery of property", and that a person, in order to be allowed to appear as a defendant therein must show himself interested in the subject matter. Ordinarily, money unearmarked, or otherwise distinctive, would not constitute "property" within the meaning of the statute. But where funds derive from a particular transaction under circumstances such as are here presented and the judgment of the court is invoked as to whether they are subject to garnishment at the instance of a judgment creditor, we deem them to be of such character as to permit intervention by an adverse claimant, not a party to the proceeding, demonstrating an interest therein. As we have heretofore stated, we find no unreasonable delay or laches on the part of the intervenor in asserting her claim, nor an abuse of discretion on the part of the trial Judge in allowing the intervention.

We are of the opinion that, under the evidence adduced, the trial Judge was correct in holding that the garnishee was not indebted to M.S. Woods. This is conclusive of the bank's claim to the fund. Inasmuch as the garnishee, being informed of the filing of the intervening petition, is not contesting intervenor's claim to the money, but on the contrary showed by his answer to the garnishment a failure of consideration in the note transaction, we consider the judgment of the Court to constitute a proper disposition of all matters in controversy.

While in equity, the costs incident to an interpleader are ordinarily taxed against the fund in Court, Stansbury, Trustee, v. Bank of Amory, 13 Tenn. App. 673, the Chancellor may, in his discretion, decree otherwise. Woodard v. Metropolitan Life Ins. Co., 160 Tenn. 325, 24 S.W.2d 888. And costs are correctly adjudged against a judgment creditor where there are no funds or insufficient funds in the hands of the garnishee to pay the debt and costs. See State for the Use of Arnold v. Linaweaver,40 Tenn. 51; Huff v. Mills, 15 Tenn. 42, in the present case, the Court having held that the garnishee was not indebted to the judgment debtor, the costs were properly taxed to the party at whose instance the garnishment was issued.

The petition to rehear is accordingly denied at the cost of the plaintiff-in-error and the sureties on its appeal bond.

McAmis and Howard, JJ., concur.