Opinion
11-07-1889
FITZGERALD et al. v. ELLIOT et al.
W. D. Holt, for the motion. Elmer Ewing Green, for complainants. O. D. W. Vroom, for defendant Magowan.
On motion to modify injunction.
W. D. Holt, for the motion. Elmer Ewing Green, for complainants. O. D. W. Vroom, for defendant Magowan.
BIRD, V. C. Fitzgerald & Co. gave their promissory note to Clark, winch note was indorsed by Magowan. This note was transferred to one Alexander. The defendant, Elliot, having a claim against Clark, proceeded against him by attachment, and levied upon all his rights and interests in this note, the amount of which was due to Clark from Fitzgerald & Co. Vanderveer, the holder of the note, brought his action thereon, and has recovered judgment against the maker and indorser Magowan. Fitzgerald & Co. have tiled their bill of interpleader, and an injunction was allowed restraining the defendants from proceeding upon their judgments. The whole amount due upon the note has been paid into court. Vanderveer now asks such modification of the injunction as will enable him to proceed upon his judgment against Magowan, the indorser. This, it seems to me, cannot be allowed. It would be the clearest circumvention of the equity of the case. Fitzgerald & Co. have come in and acknowledged themselves primarily liable to pay the amount due, and bring the money into court. Both the defendants claim this same money at the hands of Fitzgerald & Co., who claim the protection of the court against paying the same amount to each of them. And the interpleader rests upon the theory that they should be so protected; but this view would be frustrated were the judgment creditor permitted to make his claim of Magowan, the indorser; for then, beyond all question, as between Magowan and Fitzgerald & Co., the equities would be in favor of the former, and should Elliot prevail upon interpleading, Fitzgerald & Co. would take the fund in court. Hence Fitzgerald & Co. have a perfect right not only to protect themselves as makers, but also Magowan, who is only an accommodation indorser. It seems to me that any other conclusion would be inconsistent with every principle upon which a court of equity proceeds. The motion will be denied, with costs.