Opinion
15445.
MAY 9, 1946.
Interpleader, etc. Before Judge Porter. Floyd Superior Court. January 12, 1946.
James Maddox, for plaintiff in error.
Lanham Parker and Carl H. Griffin, contra.
1. "Whenever a person shall be possessed of property or funds, or owe a debt or duty, to which more than one person shall lay claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead."
2. If the holder knows all the facts, and the questions of law, under repeated decisions of this court, are not intricate or debatable, such a petition will not lie; but it is not incumbent upon the holder to decide at his peril either close questions of fact or of law to entitle him to have the parties at interest set up their claims for determination, but it is necessary that the petition show at least two persons having conflicting claims to the fund in hand and that each is apparently well founded.
3. Whether or not the petition as originally brought did not show cause for an interpleader, because only one of the alleged claims was well founded, the decree of interpleader entered by the court was interlocutory; and where one of the claimants filed during the term a motion to vacate, and the petitioner thereupon filed an amendment which showed an apparent foundation for the claim alleged by the motion to have been lacking in this respect, the court, after a hearing pursuant to a rule nisi, did not err in overruling the motion to set aside the decree of interpleader.
No. 15445. MAY 9, 1946.
Henry Autry, doing business as Henry Autry Auto Funeral Home, brought an equitable petition against H. R. Mullins and Mrs. Grace Elrod, as administratrix of the estate of J. B. Mullins, deceased, alleged as follows: After the death of J. B. Mullins, his widow died on or about October 30, 1943, and H. R. Mullins made a contract with the petitioner for a complete funeral service for his mother, the said widow of J. B. Mullins, at an agreed price of $315.03, and it was fulfilled by the petitioner. On October 31, 1943, Mrs. G. E. Parris, who the petitioner understands is a daughter of the deceased Mrs. Mullins, paid $25 in connection with the funeral expense, leaving a balance of $290.03. Shortly thereafter H. R. Mullins tendered the petitioner a check for $750, which was payable to H. R. Mullins, the same being tendered in payment of the balance of the funeral bill and Mullins desiring the difference in cash. The petitioner did not have on hand such a sum of money and gave to H. R. Mullins the difference in checks of the petitioner, one check being for $425 and another for $34.04, totaling $459.04. The petitioner does not recall as to the remaining difference of 90 cents, but believes that it was paid in cash. The petitioner deposited the $750 check in his bank in due course of business and received payment therefor, but does not remember who had drawn the check or on what bank it had been drawn, it having been a business transaction in due course. Shortly thereafter a demand was made on the petitioner by Mrs. Elrod, representing that the money should be paid to her, as it was due to the estate of J. B. Mullins, and she was holding the petitioner responsible for the said funds, in that they were not the funds of H. R. Mullins but of the estate of J. B. Mullins. The petitioner then contacted the defendant H. R. Mullins, and ascertained that the $34.04 check had been cashed, but that the check for $425 had not been presented for payment; but at the same time the defendant Mullins contended that the fund belonged to him individually and that he expected payment to be made to him. Thereupon the petitioner stopped payment on the check at the bank, being in ignorance of the actual respective rights of the defendants as each was claiming the fund. The petitioner has acted in good faith in the transaction and had nothing to put him on notice at the time of the presentation of the check for $750 of any claims of the respective parties, but both admit that the funeral bill should be paid out of the said fund, and the only contention between them is as to the uncashed check for $425. The petitioner has no interest or claim in or to the said fund as between the conflicting claims of the defendants, and this action is brought without any collusion of any of the parties. The prayers were: that (a) the defendants be enjoined from taking any proceeding against the petitioner in the matter; (b) each of the defendants be required to interplead; (c) some person be authorized to receive the $425 pending the litigation; (d) upon delivery of the said sum, the petitioner be discharged from all liability as to each of the defendants; (e) the defendant Mullins be required to surrender the $425 check into court; (f) the costs of this action be paid out of the said fund; (g) reasonable attorney's fees be paid out of the said fund for attorney's fees incurred by the petitioner in this action; and (h) for such other and further relief as might to the court seem meet and proper.
The court issued a rule nisi requiring the defendants to show cause on December 8, 1945, why the prayers of the petitioner should not be granted, and at the same time ordered the fund paid into the hands of J. L. Jolly, clerk of the court. After a hearing on December 8, 1945, the court passed an order, providing in substance, that the defendants interplead, and enjoining them from proceeding against the petitioner, as prayed; awarding to the petitioner's attorney $50 as attorney's fees out of the fund in question; ordering that the defendant Mullins surrender into court for delivery to the petitioner the $425 check referred to in the petition; and that the petitioner, having paid into court the fund in question, be discharged from liability to each of the defendants in connection with the subject-matter of the cause, and that all costs incurred in the cause be paid from the said fund.
Thereafter, on January 8, 1946, at the same term of court at which the said order was taken, the defendant Mullins filed a motion to vacate the same upon the grounds: (1) the petition shows on its face that there are no facts or reason set forth therein upon which to base a petition for interpleader or reason why the defendant Mullins should be enjoined from proceeding against the petitioner to recover the amount of $425 on the check issued to him by the petitioner; (2) there are no allegations of facts which show how or in what way the defendant, Mrs. Grace Elrod, as administratrix of the estate of J. B. Mullins, could or would be legally entitled to the said money or the proceeds of the said check.
A rule nisi was issued setting the matter for a hearing, and at that time the petition was amended by alleging: that Mrs. Elrod claims that the $750 check was in payment of timber from the farm belonging to the estate of J. B. Mullins, of which she was administratrix, and that the timber belonged to the said estate and the proceeds of the sale belonged to the estate; that the defendant had no right to sell the timber or to receive payment therefor; that the title to the timber and the farm on which it was situated before it was cut and removed was in the estate; that the defendant Mullins claimed that it was true that the title to the timber and land was in his father, J. B. Mullins, at the time of his death, but that the other heirs had agreed to give him the farm if he looked after his mother, the widow of J. B. Mullins, and that he had done so and the timber rightfully belonged to him; that he had not actually cut the timber himself, but had sold the same as it stood for $750, the buyer to cut and remove the same, which the buyer had done and had given him the $750 check involved in this case in payment therefor.
The amendment was allowed, and thereafter an order was entered overruling the motion to vacate the order of December 8, 1945, and the exception here is to that judgment.
"Whenever a person shall be possessed of property or funds, or owe a debt or duty, to which more than one person shall lay claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead." Code, § 37-1503. "If the holder knows all the facts, and the questions of law, under repeated decisions of the courts, are not intricate or debatable, such a petition will not lie ( Lassiter v. Bank of Dawson, 191 Ga. 208, 11 S.E.2d 910); but it is not incumbent upon the holder `to decide at his peril either close questions of fact, or nice questions of law,' and in such a case he may require the parties at interest to set up their claims for determination. Knight v. Jackson, 156 Ga. 165, 168 ( 118 S.E. 661); Franklin v. Southern Ry. Co., 119 Ga. 855 ( 47 S.E. 344)." Cannon v. Williams, 194 Ga. 808, 811 ( 22 S.E.2d 838). "It is essential to the maintenance of a petition for interpleader, that there be at least two persons [having?] conflicting claims, each apparently well founded, to a fund in the hands of a person having no interest in or claim thereon, and who, as between the conflicting claimants, is perfectly indifferent." Davis v. Davis, 96 Ga. 136 (2) ( 21 S.E. 1002); Wight v. Ferrell, 188 Ga. 200, 201 ( 3 S.E.2d 736). See also Campbell v. Trust Company of Georgia, 197 Ga. 37 ( 28 S.E.2d 471, 152 A.L.R. 1111). "Real doubt or danger alone authorizes one to file a petition for interpleader. It must appear from the allegations of the petition that the conflicting claims of the defendants are of such character as to render it doubtful or dangerous for the plaintiff to act; and in order to do this it is necessary that such claims be set forth so as to inform the court of their nature, character, and foundation, certainly to the extent of enabling the court to determine whether or not an interpleader is essential to the plaintiff's protection." Knight v. Jackson, 156 Ga. 165, 167 ( 118 S.E. 661). The petition as originally brought clearly showed a claim by H. R. Mullins, which the petitioner might reasonably conclude he could not in safety ignore. Mullins, who contracted for the funeral services furnished by Autry, tendered in payment for the same a check for $750 which was payable to him, and which in no wise showed that anyone else was interested in the proceeds thereof. Autry, being unable to give him in cash the difference between that check and the balance due, issued to Mullins his personal check for $34.04, which Mullins cashed, and also a check for $425. When Autry stopped payment on this $425 check, after Mrs. Elrod, as administratrix, asserted that the money belonged to the estate represented by her, the result was that Autry was left in possession of funds which were not his own, since the check was not payment until itself paid. Code, § 20-1004; Sims v. Bolton, 138 Ga. 73 ( 74 S.E. 770); Browder-Manget Co. v. West End Bank, 143 Ga. 736 (1-a) ( 85 S.E. 881). Mullins disclaimed title to this fund, and might reasonably entertain the fear, whether well founded in law or not, that payment to Mullins would be hazardous. The allegations as to the claim of Mrs. Elrod, as administratrix, showed only a vague contention that the money should be paid to her because, for some unexplained reason, it was due to the estate she represented, and it might be urged with some plausibility that these allegations did not show a conflicting claim of such nature as to enable the court to determine that an interpleader was essential to the petitioner's protection, because, before "a stakeholder can call upon adverse claimants to a fund in his hands to interplead, he must satisfactorily show to the court that their claims have such a `foundation in law as will create a reasonable doubt' as to his safety in undertaking to determine for himself to whom the fund belongs." Franklin v. Southern Railway Co., supra. However, as will presently appear, no decision is necessary as to whether or not the original petition showed the claim of Mrs. Elrod, as administratrix, to be well founded.
At the same term of court, the defendant Mullins filed a motion to vacate the judgment on the grounds that the petition did not set forth facts showing why he should be enjoined from proceeding against the petitioner, or how or in what manner Mrs. Elrod, as administratrix, would legally be entitled to the proceeds of the $425 check; that is to say, that there was no basis for an interpleader between the rival claimants. Thereupon Autry filed an amendment setting up that Mrs. Elrod, as administratrix, claimed that the $750 check was in payment of timber from the farm of her intestate and belonged to the said estate before being cut and sold, and that Mullins had no right to sell the same or receive payment therefor; but it was alleged that Mullins claimed that the other heirs had agreed to give him the farm if he looked after his mother, the widow of J. B. Mullins, which he had done, and that the timber rightfully belonged to him, and he had sold it to a buyer who had cut and removed the same and given him therefor the check for $750. Had these allegations been included in the original petition, the court would have been sufficiently informed of the foundation upon which each of the respective claims was based, and a good cause for interpleader would have been shown. The fact that they were not presented until after judgment and the motion to vacate had been filed would not preclude the court from rendering the judgment here complained of. With respect to the revision and correction of a decree of interpleader, we think that the correct rule is set forth in 33 C. J. 466, § 60, as follows: "The decree to interplead is interlocutory and, therefore, subject to revision and correction, and it may, before final decree, be reviewed as having been improvidently and prematurely passed, and the grant or refusal of an order to interplead being a matter of judicial discretion, the vacation of such an order upon application and cause shown is equally within the court's discretion. Whether such order is vacated for irregularity or because improvidently granted or upon new facts and circumstances being shown is not material." Since the court had authority to vacate the decree of interpleader upon any grounds mentioned above, it likewise, upon a consideration of the amendment to the petition, was authorized to refuse to vacate the judgment when it was shown that an apparent foundation for the claim of Mrs. Elrod, as administratrix, existed. It would have been an unnecessary procedure to set aside the judgment because of the fact that without the amendment the claim of Mrs. Elrod, as administratrix, did not appear to have any foundation, and then, upon a consideration of the amendment showing to the court an apparent foundation therefor as against the claim of the other defendant, to reinstate the original decree of interpleader as authorized by the petition as amended.
Judgment affirmed. All the Justices concur.