Baxter v. Day ( 1888 )

Cassoday, J.

If the defendants were entitled to have Hale and Shipley made parties defendant in the place of themselves, then it was by virtue of sec. 2610, R. S., as amended by ch. 41, Laws of 1883. The clause of that section which may be urged as applicable with most plausibility is this: “A defendant, against whom an action is pending upon a contract, or for specific real or personal property, or for the conversion thereof, may, at any time before answer, upon affidavit that a person, not a party to the action, and without collusion with him, malees against Mm a demand for the same debt or property, . . . apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct; and the court may <in its discretion make the order.” This is not an action “ for specific real or personal property, or for the conversion thereof.” It is, however, an action “ upon a contract.” But in such an action the defendant has no right to such interpleader, unless “ a person not a party to the action . . . makes against him a demand for the same debt? Hale and Shipley have made no claim to the contract price of the logs which the defendants agreed to pay the plaintiff. x Their claim, if any, is based upon their alleged ownership of the logs. Their remedy, if any, is manifestly to replevy the logs, or in an action for their wrongful conversion. In neither action could they make “a demand for the same debt” which this action is brought to recover. The case is not, therefore, within the statute.

By the Gourt.— The order of the circuit court is affirmed.