Graham Paper Co. v. Crowther

SMTTH, P. J. In the action by attachment brought by the plaintiff against the St. Joseph Times Printing & Publishing Company, the said Morton B. Crowther filed an inter-plea whereby she alleged that under the writ issued in said action of attachment the sheriff had levied upon and attached certain specified personal property, which was the property [275] -of the interpleader, which she was then in possession of under a certain mortgage executed to her by the attachment defendant to secure a certain promissory note for two thousand dollars, etc. The answer denied that the interpleader was the owner of the attached property,.and then alleged that the said note and mortgage were voluntary, and made without any consideration whatever, and that the same were executed for the purpose of hindering and defrauding the creditors of the attachment defendant, etc. The interpleader replied denying the allegations of the answer. There was a trial to a jury when, at the conclusion of all the evidence, the court was asked, but refused, to give a peremptory instruction to find for the plaintiff, and this action of the court is one of the alleged errors assigned for the reversal of the judgment, which was for the plaintiff. It is strenuously insisted by the interpleader that, as the plaintiff did not introduce in evidence the record of the attachment proceeding, nor adduce any proof that the plaintiff was a creditor of the defendant, it was in no position to question the title claimed by this interpleader to the attached property, and therefore the peremptory instruction should have been given. "We do not think this insistence should be sustained. The issue in a case like this is whether or not the attached property was that of the interpleader. Teichman v. Bank, 27 Mo. App. 676; Boller v. Cohen, 42 Mo. App. 97; Shinn on Attachment, secs. 429-674. If the inter-pleader- recover, it must be on the strength of his own case without reference to the weakness of that of the plaintiff. The burden of proof is upon him in the first instance to establish his right and title to the attached property, and this he must do by the preponderance of the evidence. Toney v. Goodley, 57 Mo. App. 235; Shinn on Attachment, sec. 437. And so it has been ruled that when the interpleader ■alleges that he bought the property before the attachment, .and the plaintiff replies that the sale was to defraud creditors, [276] the validity of the attachment is not put in issue because it does not affect tbe interpleader’s claim. The plaintiff in tbe attachment is not required to show that he has an attachment good against the interpleader. His right to the property does not depend upon the character of the attachment, whether valid or invalid. If invalid it would not help him. Markly v. Keeney, 87 Iowa 398. It can not concern the inter-pleader as to whether or not the plaintiff sustain his attachment, or whether or not he prevail in a trial on the merits. The interplea, in effect, alleged the existence of the writ, and the levy. The validity of both were not controverted, nor in any way put in issue in the case. It has been elsewhere held, under a somewhat analogous statute, that in a case where the answer of the plaintiff was a denial of the ownership alleged in the interplea, accompanied with an allegation that the money claimed was the property of the defendant, and that it had been deposited in bank in the name of the interpleader to put it beyond the reach of the creditors of the defendant, the plaintiff, under this simple issue, could prove the facts impeaching the validity of the transfer as to him, a creditor, and that the plaintiff in his answer, was not required to allege that he was a creditor of the defendant. Smith v. Barclay, 54 Minn. 47. And of course if the plaintiff was not required to allege this fact in his answer, he was not required to prove it. Under the established practice in Mississippi in actions by attachment, the issues between the plaintiff and defendant must be finally determined before the claim of the interpleader can be adjudicated, and in the trial of the issue between the interpleader and the plaintiff the entire record in the attachment goes with the interpleader proceeding and therefore need not be introduced in evidence. French v. Sale, 60 Miss. 516. We think, therefore, that under the issue between the interpleader and the plaintiff, the latter was not required to prove himself a creditor, or, if so, the entire record in the attachment could be relied on as [277] sufficient to show that fact without introducing it in evidence. It is proper to say that in reaching this conclusion we have not overlooked the two replevin cases decided by us and cited in the interpleader’s brief. In this case the interplea alleged the existence of the writ while in those the petition contained no such allegation, and, therefore, this case is distinguishable from those for that, if for no other reason. It results from these considerations that we can find no fault with the action of the court in refusing the interpleader’s peremptory instruction. As to the other instructions given for the plaintiff, it is sufficient to say that when the case was here by appeal, on a former occasion (79 Mo. App. 504), they were examined by us and the conclusion was reached that they were correct expressions of the law applicable to the case, and no reason is now seen why we should not adhere to that conclusion. It would subserve no useful purpose to again review the evidence, as that in the present record does not sufficiently vary from that presented by the record when the case was then before us, to warrant a different conclusion in respect to its probative force. We thought then, and think now, that it was, and is, ample to justify the submission of the issues to the jury, and that being so, we must regard the verdict as conclusive on us. The judgment must be affirmed. All concur.