Henry Petring Grocer Co. v. Eastwood

BIGGS, J. This record presents a single legal question. The plaintiff sued Eastwood by attachment. The sheriff levied upon the interest of the defendant in certain real estate. Susan A. Tinsley claimed to have purchased the interest of Eastwood in the land prior to the attachment. Her purchase was evidenced by a written contract. After the levy Eastwood executed a deed to her. Subsequently she filed an interplea setting up her claim to the land, and she asked that it be released from the levy. The question is, can an interplea be resorted to where land is attached ? The circuit court held that it was the proper remedy, and upon a hearing it found the issues in favor of Mrs. Tinsley, and rendered a judgment in her favor. [273] The language of the statute (E. S. 1889, sec. 572), is, “any person claiming property, money, effects or credits attached, may interplead in the case,” etc. The language of the corresponding section in the statute of 1855 (see. 39 of the article concerning attachments) is “property, money, effects or credits attached.” The supreme court in the case of Gordon v. McCurdy, 26 Mo. 301, held that under this latter section an interplea could not be. made for real estate; that the remedy was confined to cases where personal property was attached. The court, said: “Land is fixed and permanent, and if one has a right to it, that right can not be affected except he has notice and is brought in as a party. Others may litigate about it without affecting him; indeed the proceedings under our attachment laws are already sufficiently embarrassing and involved without adding to them another element of confusion.” This decision has never been questioned, and as it was rendered under a statute identical in its language with the present law, the ruling of the court is controlling with us. It may be remarked that the judgment entry recites that the property and money attached is the property of the interpleader, whereas the evidence preserved in the record conclusively shows that Mrs. Tinsley did not claim any title or interest in the personalty attached. Her interplea was directed solely to her alleged interest in the land. This renders the recitals of the judgment entry incomprehensible to us. The judgment of the circuit court will be reversed and the cause remanded, with directions to dismiss the interplea and restore the levy of the attachment of the land. All concur.