United Producers' Pipe Line Co. v. Britton , 1924 Tex. App. LEXIS 654 ( 1924 )

^* Writ of error refused December 3, 1924. The Producers' Pipe Line Company instituted this action of interpleader and as grounds therefor alleged:

That A. G. Britton recovered a judgment against it in the sum of $1,890.08; that it has been abstracted in Tarrant county and is a cloud on the lands and properties of the plaintiff; that of said judgment has been assigned to the First State Bank of Eastland, $985.08; to M. F. Babb, $905, and that certain others, naming them, had caused writs of garnishments to be served upon it, and others had filed orders with plaintiff from said Britton on plaintiff for sums alleged to be due them for work done in performance of said contract, naming the parties and the amounts.

"That the aggregate of the various defendants is largely in excess of the sum of $1,890.08, found to be due by plaintiff to said Britton by the judgment of the district court of Parker county, Tex.; that said indebtedness is claimed in whole or in part by each of said defendants; that the claims of said defendants are all to said sum of $1,890.08, and that they are all either for work alleged to have been done or materials and supplies alleged to have been furnished for said Britton in connection with said contract, and that they all grow out of or are connected with said contract and the amount found to be due by plaintiff thereunder by the judgment of the district court of Parker county, Tex., aforesaid; that plaintiff is indifferent as to which of said defendants recover said fund; and that plaintiff has not colluded with any of said defendants in bringing this suit or any matters connected herewith.

"That this plaintiff is indebted to said Britton and to his codefendants in said sum of $1,890.08, but no more, and that it cannot tell or to which ones of said defendants said sum is properly payable; that unless the rights and amounts of the various claimants to said funds be determined herein there will be and is a very grave danger that it will be forced to pay said indebtedness, or parts thereof, more than once; and that the claims of said defendants constitute a cloud on the title of plaintiff to its properties aforesaid, which is under the circumstances, entitled to have removed by paying said indebtedness once and only once.

"That plaintiff herewith offers to pay into the registry of this court the aforesaid sums of $1,890.08 together with interest thereon at the rate of 6 per cent. per annum from the date of said judgment."

Wherefore plaintiff prays that all the named defendants be cited to appear and answer, * * * and that upon hearing the rights of the several parties to participate in the distribution of the fund be determined, etc.

This petition was filed February 7, 1923, in the district court of Tarrant county, Tex. The next proceeding was an answer filed in the district court of Eastland county, March 12, 1923, by three of the named parties, First State Bank of Eastland and J. C. and M. F. Babb, consisting of general and special exceptions, general denial, and specially:

"Plaintiff is not entitled to have these defendants interplead with their codefendants, for the amount of the judgment, because after plaintiff had knowledge of each and all of the claims Britton filed a suit in district court, Parker county, against plaintiff seeking judgment for the amount claimed to be due under the terms of the contract and for damages for breach, and that defendants for answer therein set up the claims of said codefendants in said suit; that plaintiff failed to make them parties to said suit but permitted it to go to judgment and the judgment to become final in favor of said Britton and the latter assigned said judgment to these defendants; plaintiff thereby incurred an independent liability to these defendants. Wherefore they pray that this court enter its order refusing to require them to interplead herein and discuss the cause," etc.

We note that the bill was filed February 7, 1923, and the term of court at which the hearing was had and judgment was entered began on the 5th day of February. The transcript does not show any citations or service of any kind and no answers from any of the parties except those mentioned above, so evidently the court was not ready for final hearing, but the order entered as is apparent from its contents simply sustains the motion to dismiss, and the motion contains no sufficient grounds for dismissal unless the bill was subject to general demurrer.

In the case of Williams v. Wright, 20 Tex. 502, Chief Justice Wheeler fixed the rules applicable to this class of action as follows:

"In the practice of courts of chancery, a bill of interpleader lies where two or more persons claim the same debt or duty of the complainant by separate interests; when he, not knowing to which of the complainants he ought, of right, to pay or render it, fears that he may sustain injury by the conflicting claims of the parties. He then applies to a court of equity to protect him, not only from rendering the debt or duty to both the claimants, but also from the vexation attending upon the suits, which are, or may be instituted against him. Story's Eq. § 806; 1 Cowen. 703. ``It claims no right in opposition to those claimed by the persons against whom the bill is exhibited, but only prays the decree of the court, to decide between the rights of those persons for the safety of the complainant.' Id.; Cooper's Eq. Pl. 456. ``If a debt or other claim has been assigned, and a controversy arises between the assignor and assignee respecting the title, a bill of interpleader may be brought by the debtor, to have the point settled, to whom he shall pay.' Story, Eq. § 808, and cases cited. And see Marion v, Elwood, 11 Paige, 365; 2 Id. 209; 8 Id. 339. From these authorities it would seem that the case exhibited by the defendant's answer was a proper case for the awarding of equitable relief."

Appellant's propositions in effect assert that its bill is sufficient to meet the requirements, and we think they must be sustained. Melton et al. v. Am. Surety Co. (Tex.Civ.App.) 240 S.W. 574.

Appellee presents several counter propositions which if pertinent are not sound. The appellant is entitled to have time to give the notice provided by statute to the named parties to come in and assert their claims.

Reversed and remanded.