Hill v. . Patillo

Hoke, J. In C. S., 840, it is provided that in proceedings of this character a third person may interplead upon filing an affidavit of his title and right to the possession of the property, stating the grounds of such right and title, and on filing a bond in double the value of the property for its proper delivery and the payment of any and all costs and damages that may be awarded against him, and on matters more directly relevant to the questions presented the section provides further that “A copy of this undertaking and accompanying affidavit shall be served by the sheriff on the plaintiff and defendant at least ten days before the return of the summons in the action, when the court trying it shall order a jury to be impaneled to inquire in whom is the right of property specified in plaintiff’s complaint.” ■ In such a proceeding the intervener is not called on or required, and indeed he is not permitted to question the validity of plaintiff’s claim against defendant, nor to file any answer thereto which denies or tends to deny its validity. On the contrary, the intervener has himself become the actor in the suit and on authority is restricted to the issue whether his claim of right and title is superior to that of the original plaintiff. Mitchell v. Tally, 182 N. C., 683; Maynard v. Ins. Co., 132 N. C., 711; Cotton Mills v. Weil, 129 N. C., 452. As said by the present Chief Justice in Maynard’s case, “An inter-pleader is entitled to but one issue, ‘Does the fund belong to him V ” In Weil’s case it is held, among other things, “An intervener has no *533 right to interfere in tbe action between tbe original parties, be being interested only in tbe title to tbe property.” Tbis being tbe position approved by tbe decided cases, while it is always better for an intervener to set forth bis claim with sufficient definiteness to apprise tbe original parties of its nature and extent, if tbe affidavit is sufficient for tbis purpose there is no reason why tbe issue raised therein may not be inquired of and determined by tbe jury, and tbe statute above referred to seems to provide that if tbe affidavit is sufficient to present tbe issue, tbis is all that is essential. Doubtless, as in other 'claims of tbis kind which a court is called on to investigate or determine, if a more extended statement is desirable, looking to a fuller settlement of all matters embraced within tbe issue, tbe court may order such statement to be made and require that a formal complaint be filed, but with an affidavit on file in tbe cause of.tbe .kind presented in tbis record, an issue of title is clearly raised, and it is in any event erroneous to enter judgment for plaintiff because tbe inter-vener has not filed an answer denying plaintiff’s claim. As said in some of tbe decisions cited, tbe intervener is not interested in such demand or tbe extent of it, and bis affidavit being sufficient to raise an issue as to bis own claim, it should have been submitted to and determined by tbe jury. Tbis will be certified that- tbe issue raised by tbe affidavit be determined without prejudice to tbe right of tbe trial court to order a fuller statement as to tbe extent and amount of intervener’s claiiii as landlord of tbe defendant. Error.