Citing: Memphis Cold Storage Co. v. Woodson, 1 Tenn. App. 340; Daniels Chy. P. P. (5 Ed.) Vol. II, p. 1493 (Cooper's revision); Mutual Life Ins. Co. v. Lane, 151 Fed., 276; Pettus v. Hendricks, 113 Va. 326; 2 Daniels Chy. Pr. (5th Ed.), 1570; Pomeroy's Eq. Rem. Sec. 59; Miller v. Watts, 4 Duer (N.Y.), 203; Canfield v. Morgan, 1 Hopkins Ch. (N.Y.), 222; Woodmen of World v. Wood, 100 Mo. App. 655; Swiger v. Hayman, 56 W. Va. 123; 107 Am. St. Rep., 899; Bedell v. Hoffman, 2 N.Y. Chy., 199. Citing and Differentiating: Daniel v. Fain, 73 Tenn. (5 Lea), 258; Helmken v. Meyer, 118 Ga. 657; Knights of Honor v. Selby, 153 N.C. 203; Temple v. Lawson, 19 Ark., 148; Modern Woodmen v. Conner, 129 Ill. App. 651; Metropolitan Life Ins. Co. v. Kinsley, 192 Ill. App. 229; Chapin v. Dake, 57 Ill. 295; Insurance Co. v. Corbin, 12 Phila., 257; 33 Corpus Juris, p. 470; Dunlap v. Hubbard, 19 Ves., 205; Dawson v. Hardcastle, 1 Ves., 389; Phoenix Ins. Co. v. Carey, 80 Conn. 426; Morse v. Stearns, 131 Mass. 389; Trustees v. Greenough, 105 U.S. 627, 26 L.Ed., 1157; State Fur. Co. v. Gennett, 1 Tenn. Chy., 100; Louisiana Lottery Co. v. Clark, 16 Fed., 20; Thomas Kay Woolen Mill Co. v. Sprague, 259 Fed., 338. 2. EQUITY.
Deposit of the money or property in controversy into court was a requirement in actions of interpleader also at common law. This requirement has been relaxed in many cases where no statute modifying the common law was involved, State of Texas v. State of Florida, 306 U.S. 398, 59 S.Ct. 563, 830, 83 L.Ed. 817, 121 A.L.R. 1179; Baldwin v. Constantine, 214 Ala. 446, 108 So. 345; Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A. 993; Nash v. Smith, 6 Conn. 421; Webster v. McDaniel, 2 Del. Ch. 297; Smith v. Nicholson, 221 Mo.App. 428, 289 S.W. 349, certiorari quashed State ex rel. Bradley v. Trimble, 316 Mo. 97, 289 S.W. 922; C.F. Duke Storage Warehouse, Inc., v. Keller, 141 N.J. Eq. 43, 55 A.2d 901; see note approving Duke case, 1 Vanderbilt L.Rev. 459, and in other jurisdictions by rule or statute (e.g., Penna. Rule Civ. Proc. 2303(a)(3), Penna.Stat.Ann.
It is well settled that this statute allows the court to award a stakeholder reasonable attorney's fees and expenses. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 431, 68 A. 993 (1908). The trial court has a wide discretion in making its awards, subject to review only for an abuse of that discretion.
The defendant's application, supported by and affidavit, alleged that the plaintiff had arranged to borrow $600,000 from the Beatrice Koizim Trust, assigning as collateral his interest in S K Associates. This action directly contravened the court's directive, set out in its memorandum of decision, that the plaintiff's interest in these assets not be encumbered or divested. Under these circumstances we cannot say that the court abused its discretion in issuing a temporary restraining order. See General Statutes 52-473; Phoenix Ins. Co. v. Carey, 80 Conn. 426, 431, 68 A. 993 (1908). With respect to the ex parte contact, which consisted of a telephone conversation in which permission was sought to submit an application for the restraining order discussed above, it was entirely proper.
The construction which we place upon the finding is fortified by the memorandum of decision, which may be consulted in the interpretation of ambiguous or equivocal language in a finding. Maltbie, Conn. App. Proc. (2d Ed.) 152;. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 433, 68 A. 993; Rowell v. Stamford Street Ry. Co., 64 Conn. 376, 380, 30 A. 131. In its memorandum, the court stated that "the plaintiff acting by . . . her agent, rescinded the sale and notified the defendants within a reasonable time and offered to return the truck.
Jacobs v. Jacobs, 170 Md. 405, 414, 185 A. 109. Hence, notwithstanding that the granting or withholding of an injunction rests largely in the sound discretion of the chancellor, and his decree will not be disturbed on appeal unless it clearly discloses an improvident exercise of judicial discretion, nevertheless his decree will be reversed by the Court of Appeals if it clearly appears that there has been an abuse of discretion showing a disregard of the facts or an obvious error in the application of the principles of equity. Phoenix Insurance Co. v. Carey, 80 Conn. 426, 68 A. 993; Smart v. Boston Wire Stitcher Co., 50 R.I. 409, 148 A. 803; Gemmell v. Fox, 241 Pa. 146, 88 A. 426; 28 Am. Jur., Injunctions, Secs. 35, 328. It is now too late to grant an injunction in this case but there are substantive rights to be determined. Before the temporary injunction was issued, the complainant was required to give a bond in the penalty of $1,000 to indemnify the defendants for any costs and damages occasioned by the issuance of the injunction in the event the injunction was rescinded. If we do not determine the primary right of the complainant to a writ of injunction, then the complainant will not have prosecuted the cause with effect, and the liability under the bond would become fixed for costs of suit as well as possible damages; whereas our determination now that the complainant was entitled to an injunction would discharge the bond.
The evidence is not printed and we cannot say from the finding that that discretion was abused. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 431, 68 A. 993. Interest, in a case of this kind, is allowed on the theory that money has been wrongfully retained. The named defendant was directed to "hold said money, subject to the further and final order of this court" and cannot be said to have retained it wrongfully.
The authorities, as we read the cases, are to the effect that neither party claiming money which is directed to be deposited in court pending the outcome of litigation is entitled to interest on such money pending the litigation. Deering v. Schreyer, 185 N.Y. 560, 78 N.E. 75; Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A. 993; Delta Pine Land Co. v. Sherwood, 187 Ill. App. 167; Kinney v. Hynds, 7 Wyo. 22, 49 P. 403, 52 P. 1081. It has also been held that, "where a particular fund is paid into court in compliance with its order of interpleader, and various claimants litigate between themselves as to their rights to the fund, a decree distributing the fund will not bear interest, and an intervening claimant who prosecutes error to that decree in good faith, and gives a supersedeas bond to stay execution, cannot be compelled, in a suit on the bond, to pay interest on the fund or any part of it." The foregoing quotation is from the syllabus of the case of Franklin Bank v. Bruns, 84 Ohio St. 12, 95 N.E. 385, Ann. Cas. 1912B, 1002.
Such fee to eventually fall on the defendant who was in the wrong and made the litigation necessary. Mutual Life Ins. Co. of New York v. Farmers and Mechanics National Bank of Cad'z., Ohio, 173 Fed.R. 390; Pettus v. Hendricks, 113 Va. 326, 74 So. E. R. 191; Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 Atl. R. 993; Eves v. Sovereign Camp, W. O. W., 153 Mo. App. 347, 133 So. W. R. 657; Wright v. Grand Lodge K. P. (Tex.Civ.App.) 173 So. W. R. 270; Trustees of Internal Improvement Fund v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; Morse v. Stearns, 131 Mass. 389; Grooms v. Mullett, 133 Mo. App. 477, 113 So. W. R. 683; Daniel v. Fain, 5 Lea (Tenn.) 258; 33 C. J. 470 and cases cited.
Again in Waterbury Lumber Coal Co. v. Hinckley, 75 Conn. 187, 190, 52 A. 739, it is said: "The record of the court in which the judgment was rendered . . . was the only proper evidence . . . that such record was lost or destroyed." See also Phoenix Ins. Co. v. Carey, 80 Conn. 426, 433, 68 A. 993. "It is in the judgment-file one must look to ascertain the facts upon which the judgment rests."