Opinion
19939.
ARGUED JANUARY 16, 1958.
DECIDED FEBRUARY 7, 1958.
Interpleader. Before Judge Alverson. Fulton Superior Court. October 7, 1957.
Ginsberg Haskins, Sidney Haskins, for plaintiff in error.
Walker Henderson, Wotton, Long Jones, Calhoun A. Jones, Hewitt W. Chambers, contra.
The trial judge did not err in sustaining the oral motion to dismiss the petition, in the nature of a general demurrer.
ARGUED JANUARY 16, 1958 — DECIDED FEBRUARY 7, 1958.
National Automobile Insurance Company filed a petition against E. R. Vaughn, Peoples Loan Finance Corporation, and Hewitt W. Chambers, Clerk of the Civil Court of Fulton County. In so far as material, it was alleged: The plaintiff issued a policy of insurance to the defendant Vaughn on an automobile purchased by him. The policy contained a loss-payable clause to the insured and Peoples Loan Finance Corporation. Vaughn has filed a suit in the Civil Court of Fulton County, seeking to recover $1,740 as principal, and damages and attorney's fees. In his suit Vaughn alleged that the automobile insured by the policy of the plaintiff burned and was a total loss, the actual cash value at the time being $1,740. Vaughn alleged that he had furnished proof of loss, and that the plaintiff is acting in bad faith in failing to pay his claim. At the time of the alleged loss Vaughn was indebted to Peoples Loan Finance Corporation in the sum of $1,629.36. The automobile covered by the policy of insurance was worth between $850 and $1,000. Peoples Loan Finance Corporation has demanded payment of the plaintiff. The plaintiff is possessed of funds due to either, or both, of the defendants, Vaughn and Peoples Loan Finance Corporation. Both of the defendants lay claims of such character as to render it dangerous for the plaintiff to act. The Civil Court of Fulton County is a court of law and not of equity, and has no power to compel the parties to interplead. Vaughn is insolvent and unable to respond in damages, and unless equity intervenes, the plaintiff will be irreparably damaged, and will be faced with a multiplicity of claims and law suits, all of which can be tried and disposed of in one action in this court.
The prayers were: for process; that the court compel the defendants, Vaughn and Peoples Loan Finance Corporation, to interplead; that they be temporarily restrained, and permanently enjoined, from proceeding further in the Civil Court of Fulton County; that the defendant clerk be restrained from placing the case on the calendar of that court for trial; that the value of the automobile described in the policy of insurance be determined; that the respective interests of the defendants, Vaughn and Peoples Loan Finance Corporation, be determined; and that the plaintiff recover expenses, including reasonable attorney's fees; and for other relief.
The trial judge sustained a motion in the nature of a general demurrer, and dismissed the petition. The exception is to that judgment.
1. A petition for interpleader is an equitable proceeding. Terhune v. Pettit, 195 Ga. 793, 795 ( 25 S.E.2d 660). All questions as to the value of the automobile insured by the plaintiff, being questions of fact, could be determined in the Civil Court of Fulton County, and the intervention of equity to determine the value of the automobile would be wholly unauthorized.
"Under numerous decisions of this court in relation to the subject-matter of fire insurance, all persons interested in the contract should be joined, in order properly to adjudicate the question of liability or non-liability of the insurer." Firemen's Insurance Co. v. White, 181 Ga. 759 (2) ( 184 S.E. 316). See also Ga. Casualty c. Co. v. Pincus, 89 Ga. App. 836 ( 81 S.E.2d 527). The plaintiff, by appropriate special demurrer, could have raised the question of nonjoinder of a necessary party plaintiff in the Civil Court of Fulton County. The plaintiff therefore had a full, complete, and adequate remedy at law.
2. In order to entitle a party to a petition for interpleader, the adverse claims must be derived from a common source, and the petitioner must show that he claims no right in opposition to the claimants, or either of them. To sustain a petition in the nature of a petition for interpleader, the petitioner must show an equitable, vested, and subsisting interest as opposed to an interest he expects or hopes to acquire as a result of the litigation. Phillips v. Kelly, 176 Ga. 111 ( 167 S.E. 281); Campbell v. Trust Co. of Ga., 197 Ga. 37 ( 28 S.E.2d 471, 152 A.L.R. 1111); Almand v. Reese, 209 Ga. 138 ( 71 S.E.2d 223).
Under the foregoing rules, the petition could not stand as an action for interpleader, or as an action in the nature of a petition for interpleader. The petition is insufficient to state a cause of action in equity to avoid a multiplicity of suits. Wight v. Ferrell, 188 Ga. 200 ( 3 S.E.2d 736).
Judgment affirmed. All the Justices concur.