Nolan v. Deutsch

Ellison, J. All of the instructions asked, by appellant were given. He complains of two given for interpleader, but we regard them as correct under the facts as summarised in the statement of the cause. The facts do not make out a sale, void as a matter of law under the statute, and the court was not asked to so declare it. The following is one' of the chief causes, alleged in the assignment of errors, for a reversal of the judgment, viz. : “The attached property having been sold before the filing of the interplea, any finding and judgment for the interpleader in the case was and is erroneous.” The judgment rendered in this case is not set out in appellant’s abstract, but it will be observed that the objection is, that no judgment can be had for interpleader on account of the property having been sold by order of court, under the attachment law concerning perishable property. I think the objection is not good. In Hewson v. Tootle (72 Mo. 632), the issue was, as in this case, whether the property attached was the property of the interpleader, and the verdict was : “We, the jury, find for the plaintiffs $542.75,” and the judgment on the verdict was, that plaintiff have and recover the proceeds [5] arising from the sale of the goods by the sheriff, who is thereby ordered to pay the proceeds to the interpleader. That verdict was held not responsive to the issue, and, in consequence, the judgment thereon erroneous, but it is expressly stated, in that case, that if the verdict had been that the attached property was interpleader’s, the judgment rendered would have been proper. Where property attached has been sold, the issue on interplea is still, whether the property is the property of interpleader or not; and the verdict must respond to that issue, instead of being for money, as in the case supra. If the verdict is that the property belongs to the interpleader, then the judgment may properly be that he recover the proceeds of the sale. We discover no error justifying a reversal, and affirm the judgment. ' All concur.