Guaranteed State Bank of Durant v. D'Yarmett

OWEN, J. This action was brought by the Missouri, Kansas & Texas Railway Company, in the district court of Bryan county against E. C. DYarmett, the Guaranteed State Bank of Durant, and others. The petition alleged, in substance, that the city authorities of Durant had ordered certain paving, and created an improvement district which included the railway company’s right of way at the street crossing; that the railway company had the option of paving between its tracks, but the city authorities had assessed t'he cost of said improvement against the railway company, and had issued paving bonds for said amount; that the railway company had, in fact, paved that portion of its right of way included in the district under contract with the defendant DYarmett with the consent and approval of the city authorities; that the assessment and bonds were void for the reason the assessment was made against the company and not against the property 'included in the improvement district ; that the company had at all times been ready and willing 'to pay DYarmett the contract price for said paving as soon as DYarmett complied with the terms of the contract by furnishing the company with receipts .for all claims for labor and supplies; that the paviug bonds were outstanding and constituted a cloud upon the title of the company’s right of way; 'that other persons named as defendants were claiming to be the owner by assignment of said bonds and of the funds due DYarmett; that various defendants claiming to be creditors of DYarmett had garnished the railway company in various actions pending in different courts, and that .the railway company had been sued in a humber of actions by different persons presenting claims against DYarmett for labor and supplies growing out of said paving. The petition joined all persons mentioned as defendants, and prayed that they be required to set forth their claims against DYarmett growing out of said pavement and their interests or claims in and to said funds; that the bonds be adjudged void and ‘surrendered for cancellation, the city enjoined from collecting the assessment, ánd that the court determine to whom the company should pay the funds which it contracted to pay DYarmett for said paving. Upon trial of the various issues joined, the court found that the work pel-formed by DYarmett under contract with the railway •company was in all respects done with the consent and approval of the city; that the 'assessment against the company and the bonds issued 'therefor were void, and directed a cancellation of the assessment and of the 'bonds. The company was directed to pay to the clerk of the court the amount contracted to have been paid DYarmett. As between the various defendants claiming an interest in the fund, the court found that the defendants American Asphaltum & Rubber 'Company and William Gethmann had .valid prior liens upon the fund in question in sufficient amounts to exhaust same, by virtue of certain garnishment proceedings. The Guaranteed 'State Bank was awarded judgment for $5,000 .against DYarmett, but was adjudged 'to have no valid lien- on the fund. From this^ judgment the Guaranteed State Bank appealed, and DYarmett filed a cross-petition in error. A motion to dismiss the appeal was filed, by defendant in error DYarmett. alleging the lower court was without jurisdiction of the subject-matter, and without power to render the judgment entered. In support of this contention it is urged by counsel that the action canmot-be maintained as a bill of interpleader because the railway company, asking affirmative relief, is not a mere stakeholder; that it cannot he maintained as a bill in the nature of #a bill of inter-pleader for the reason that the railway company is not entitled to equitable relief against all the parties. We agree that 'this action is not one of interpleader, strictly speaking, but it is not necessary that the relief must be purely equitable against 'the several parties before the action can be maintained as a bill in the nature of a bill of interpleader. The railway company is a stakeholder of the fund due to DYarmett, and offers to pay -that on determination by *166 the court to the party entitled to same. The company al'so asks for affirmative relief against the city to enjoin the collection of the assessment, the cancellation of the bonds, and to remove the cloud from its title. A 'bill in the nature of a bill of in-terpleader is one in which the complainant seeks some relief of an equitable nature concerning tire 'fund or subject-matter in dispute, in addition to interpleader of conflicting claimants. In Pomeroy’s Equity Jurisprudence, vol. 5, § 60, it was said: “The complainant is not required,_ as in strict interpleader, to be an indifferent stakeholder, without interest in the subject-matter.” To the same effect is section 1571, Daniell’s Chan. Pl. & Pr. (5th Ed.) and Story’s Eq. Jur. (13th Ed.) § 824. In the case of Hayward & Clark v. McDonald, 192 Fed. 890, 113 C. C. A. 368, it was said: “A complainant may have in his hands property or money to which others have conflicting claims, in reference to which property or conflicting claims 'the complainant may have equitable rights or claims and be entitled to equitable relief. In such case, while he cannot maintain a bill of inter-pleader strictly so called, he is nevertheless entitled to relief, and is permitted to maintain a bill in the nature of a bill of inter-pleader.” Another case in point is Illingworth v. Rowe, 52 N. J. Eq. 360, 28 Atl. 456. The subject-matter of the action here was the fund representing the paving work done by D’Yarmett. The railway company claimed an equitable interest in the subject-matter, that is, upon payment of the funds due D’Yarmett it was entitled to have the assessment and the bonds canceled and to be relieved of liability to the various parties making claims against the funds. The bonds issued to cover this assessment were in the hands of the Guaranteed 'State Bank. The company had been sued by various parties to recover the fund held by it representing the value of the paving work done by D’Yarmett. .The company had been made garnishee in suits in which it was, sought to secure these funds, or portions thereof, and had been served with an assignment of D’Yarmett’s claim in favor of one of the defendants. The company had a right to have a judicial determination between the different claimants as to whom it should pay the fund representing the value of the pavement. Wheeler v. Armstrong, 164 Ala. 442, 51 South. 268; Carter v. Cryer (N. J. Ch.) 59 Atl. 252. It is a well-recognized rule of equity jurisprudence that when a court of equity obtains jurisdiction of an action for any purpose for which it is authorized to render a decree, it will hold such jurisdiction for every purpose and for a complete determination of all the rights of the parties involved in the subject-matter of the cause before it, and will exercise its power in this regard to prevent a multiplicity of suits. De Roberts v. Town of Cross, 23 Okla. 888, 101 Pac. 1114; Cook v. Warner, 41 Okla. 781, 140 Pac. 424; Watkins v. T. F. Mfg. Co. (Ala.) 38 South. 756; Ducktown Co. v. Barnes (Tenn.) 60 S. W. 595; Springfield Tr. Co. v. Warrick, 249 Ill. 470, 94 N. E. 933, Ann. Cas. 1912A, 187; 10 R. C. L. 370. The motion to dismiss for want of jurisdiction must be overruled. . The only remaining question to be determined is whether the trial court erred in denying the Guaranteed State Bank a prior lien on the funds in question. This defendant held the paving bonds issued to cover the assessment against the railway company as collateral security for the payment of the indebtedness from D’Yarmett. It is urged in the brief that -the delivery of the bonds to the bank constituted an equitable assignment of the funds due D’Yarmett from the railway company, and this delivery being prior to the garnishment proceedings, the court erred in holding the liens of the attaching creditors superior to the claim of the bank. The trial court held the paving bonds were void, for the reason that the assessment was made against the railway company and not against the property benefited by the street improvement. The portion of the right of way included in the improvement district was at the intersection of the right of way and street. Under the statute in force at the time (S. L. 1907-08, c. 10, p. 176) the city had the right to compel the railway company to pave between its tracks, and upon refusal to do so, the dity might do the paving, and under section 614 assess the cost against the property adjacent or contiguous to which said improvement was made. It is conceded the assessment was made against the company, and not against the property, and the railway company paved its right of way under a contract with D’Yarmett. The court correctly held-the assessment and bonds issued 'thereon void, and properly directed their cancellation'. Article 10, § 7, Const.; Morrow v. Paving Co., 27 Okla. 247, 111 Pac. 198; Craw v. V. T., 96 Ill. 255, 36 Am. Rep. 143; City of Lincoln v. L. S. B. Co., 67 Neb. 469, 93 N. W. 766; Neenan v. Smith, *167 50 Mo. 525; Manning v. Den, 90 Cal. 610, 27 Pac. 435. The delivery of 'the bonds to the bank as collateral security amounted to a pledge, as defined by section 4500, Rev. Laws 1910, where-it is said: “Pledge is a deposit of personal property by way of security for the performamceuof another act.” Section 4513 of this statute authorizes a sale of the^ property pledged when the performance of the act for. which the pledge is given is due. Section 4514 provides that the property cannot be sold until after demand of performance from the debtor. In order to constitute an equitable assignment the property right of D’Yarmett in the fund must have passed to the bank. There is ia vast difference between a lien and an assignment. Our statute (section 3822, Rev. Laws 1910) defines a lien as: “A charge imposed upon specific property, by which, it is made security for the performance of an act.” An assignment is a 'transfer of some right or interest from one person to another. 2 R. C. L. 593 ; 4 Cyc. 6; 5 C. J. 836; Pass v. McRea, 30 Miss. 143; Bush v. Foote, 58 Miss. 5, 38 Am. Rep. 310. The delivery of the paving bonds to the bank as collateral security for the payment of D’Xarmett’s debt did not amount to an equitable assignment of the fund in question. The judgment of the lower court is affirmed. All the Justices concur, except HARDY, J., being disqualified, did not participate.