Perkins v. Darker

Interlocutory and final decrees affirmed. The plaintiff, a creditor of the defendant Darker, sought to reach and apply surplus funds in the hands of the defendant bank following a foreclosure sale by the bank of Darker’s equity of redemption. The bank, in its answer by way of counterclaim, disclaimed any interest in the surplus, alleged that nine attaching creditors of Darker had, as a result of the foreclosure sale, acquired liens on the fund, and asked that they be ordered to interplead. The judge so ordered. [764] i A demurrer to the counterclaim by the appellant, one of the nine attaching creditors, who had brought an independent bill to reach and apply the same fund, was overruled. In the interpleader a final decree was entered disposing of the fund to counsel and a creditor other than the appellant, whose independent bill to reach and apply was thereupon dismissed. The case is before us solely on the pleadings and the decrees. The demurrer alone has been argued. There was no error. The bank’s counterclaim sufficiently averred that two or more parties were asserting a right to the funds in its hands. LaCentra v. Jackson, 245 Mass. 14, 18. Antonellis v. Weinstein, 258 Mass. 323, 325. The ease falls within the accepted rule as to interpleader stated in Gonia v. O’Brien, 223 Mass. 177, 179. Alvin Jack Sims for Modem Builders Supply Co., Inc. A. Stanley Littlefield for Evans.