Kelly v. Howard

Mayes, C. J., delivered the opinion of the court. While the pleadings in this case are voluminous, it is not necessary to set them out in full in order to state the question presented for decision by this record. The case 'is substantially as follows, viz.: It appears that in 1908 one Henry Howard was a fireman on the Yazoo & Mississippi V'alley Eailroad, and while so employed was negligently killed in a collision which occurred on the above line of railway on the 3rd day of November, 1908. Some time in 19091 Alena Howard, wife of Henry Howard at the time of his death, instituted a suit, as sole plaintiff, against the railroad company for the negligent killing of her husband, and recovered a judgment for the sum of seven thousand five hundred dollars. Some time after the recovery of this judgment an execution was issued on same for the purpose of collecting the principal and interest due thereunder, and this execution was placed in the hands of E. M. Kelly, sheriff, who collected the sum of seven thousand six hundred, seventy-two dollars and fifty cents, being the full amount of principal and interest then due. At the time the railroad company paid the above amount to the sheriff, it notified him that it held an assignment of the interest in the judgment claimed by one Henrietta Howard, a minor child of Henry Howard, deceased, and also notified the sheriff that there were two other children of Henry Howard, to-wit, Eobert Howard — 563 — and Sam Howard, all of whom were entitled to share in the 'fruits of the litigation equally with their stepmother, Alena Howard, and that under the law each was only entitled to a one-fourth interest in the judgment. ' In this condition of affairs, the sheriff filed an inter-pleader in the chancery court of Warren county, making •as an exhibit thereto all the proceedings had in the circuit court on the trial of the cause when the judgment was rendered, this proceeding showing that the suit was instituted in the name of the wife alone, and in the testimony of the wife as it appears in that case it is shown that she testified that her deceased husband had three ■children at the date of his death; that is to say, Henrietta Howard, and Robert and Sam Howard, the last two of whom were living with her, and the first living in New 'Orleans with an aunt. It also appears in this testimony that these children are the stepichildren of the surviving widow and plaintiff in that suit. The sheriff made as parties defendant to his bill for interpleader the widow and all the children, McKnight & McKnight, attorneys for the widow, and the Yazoo & Mississippi Valley Railroad Company, and after practically stating the above facts also stated that the suit of Alena Howard was brought under section 721 of the Code of 1906'. The bill further states that these various parties are making conflicting demands upon him, as sheriff as to the application of the funds so collected by him; that the Yazoo & Mississippi Valley Railroad Company demands one-fourth of the amount as assignee of the interest of Henrietta Howard; that Alena Howard demands the payment to her or her attorneys of the whole sum; that Alena Howard contends that the minors are not the chil■dren of Henry Howard; and that McKnight & McKnight are asserting an interest in the judgment. The bill further states that the sheriff claims no interest in the fund, but under the circumstances does not know to whom he ■should pay the money, and after paying the money into — 564 — court prays that all the parties defendant be compelled to come into court and litigate their claims. A demurrer was filed to this bill, and sustained by the court, and the bill dismissed, from which judgment an appeal is prosecuted here. In order that this cause may be properly understood,, it is necessary to refer to the statute under which the suit, resulting in the judgment over which this controversy arises, was brought. If the general rules in regard to when it is proper to file a bill of interpleader are to-control, it is doubtful if this suit can be maintained. The rights of the various parties to this litigation find predicate in section 721 of the Code of 1906 and chapter 167, p. 183, of the Laws of 1908. The law of 1908 really applies, since the above chapter of the Laws of 1908 was in effect when the death occurred and when the suit was-brought. This act provides that: “Whenever the death of any person shall be caused by -any real, wrongful, or negligent act, or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have-entitled the party injured, or damaged thereby to maintain an action and recover’damages in respect thereof, and such deceased person shall have left a widow or children, or both, or husband, or father, or mother, or sister, or brother, the person or corporation, or. both, that would have been liable if death had not ensued, and the representative of such person shall be liable for damages, notwithstanding the death, and the fact that death is instantaneous shall, in no case affect the right of recovery. The action for such damages may be brought in the name of the widow, for the death of her husband, etc. ... or all parties interested may join in the-suit, and there shall be but one suit for the same death which shall enure for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. . . . Damages recovered under the provisions of this section — 565 — shall not be subject to the payment of the debts or liabilities of the deceased, and such damages shall be distributed as follows: Damages for the injury and death •of a married man shall be equally distributed to his wife -and children,” etc. The ordinary rules of interpleader, which prohibit a •sheriff from filing a bill as against the execution creditor, have no application to this case. If Henrietta, Robert, •and Sam Howard are children of Henry Howard, deceased, as they claim to be, they were by law plaintiffs in the suit of Alena Howard against the Yazoo & Mississippi Valley Railroad Company just as though their names appeared in the declaration. Being in fact plaintiffs by law, they are just as much execution creditors •as Alena Howard, the widow and stepmother. Her recovery was their recovery to the extent of their interest •as fixed by the law, and when notice of this fact was brought to the attention of the sheriff he could no more ignore them than he could ignore Alena Howard, the record plaintiff in the suit. The duty of the sheriff was the same toward all, if they are the children, and there is a privity of title between all, since the right of all is derived from identically the same source. In the case of Foster v. Hicks, 93 Miss. 219, 46 South. 533, we held that: “Under Code 1906, § 721, when the injury results in death,' as has already been held by this court (Pickens v. Illinois, etc. R. Co., 92 Miss. 210, 45 South. 868), only one suit can be instituted, and in this suit must be recovered all damages of every kind to any and all parties interested. When the action is for the death of a husband or wife, the section provides that ‘action may be brought in the name of widow for the death of the husband or by the husband for the death of a wife,’ etc., ‘or all parties interested may join in.the suit,’ etc.; but if all parties interested do not join in the suit, and it be conducted in the name of the father or mother alone, or if all parties interested do join in the suit, and there is a recovery, and — 566 — it be attempted to exclude any of them from their share, of the proceeds by having the judgment entered up in the name of the mother or father, to the exclusion of the children, such action cannot affect their right. The statute fixes the interest of all parties, and nothing that the court can do can eliminate their interest.” So far as the widow and children are concerned, they derive their title from the 'same source. H they be in fact widow and children of deceased, their rights aro fixed by the statute beyond the power of obliteration by any court or any officer of the court. All are plaintiffs in execution, with equal rights, and the sheriff has the same duty to each from the time he has notice. The very complication of the situation, viewed in connection with the statute, makes reso'rt to interpleader necessary, and under it alone can the rights of all parties be properly ascertained and protected. It is shown that the Yazoo & Mississippi Valley Railroad Company claims one share by virtue of an assignment, the validity of which we do not now determine. It is alleged that McKnight & McKnight assert, a claim under contract with the nominal plaintiff to a part of the proceeds. This plaintiff in turn claims the whole recovery as against the alleged children, denying that they are the children, and in turn the children' assert their right to a one-fourth interest each in the recovery. No court but the chancery court is capable of dealing with all these conflicting interests, guarding and protecting the interests of the minors. We are not to be understood as introducing any new rule in reference to when an interpleader is proper, further than we conceive the rule to have been changed by the statute in question. The sheriff cannot be called upon to determine the fact of whether or not the children are the children' of the deceased, whether they are legitV mate or not, whether the assignment to the Yazoo & Mississippi Valley Railroad Company is a valid assignment, — 567 — or whether McKnight & McKnight have a lawful claim to any part of the proceeds of the judgment claimed by the children. The difficulty of adjusting all these matters in the court wherein the judgment was obtained is equally manifest,, and the remedy complicated and uncertain. Reversed and remanded.