McConnell v. Story & Clark Piano Co.

BECKER, J. Appellant was interpleader below in a garnishment proceeding under execution, having been brought into the case on plaintiff’s motion on the order of the trial court under authority of section 2439, Revised Statutes of Missouri, 1909. At the close of the plaintiff’s case on a hearing of the interplea before the court and a jury, plaintiff took an involuntary nonsuit with leave to set same aside, and judgment was accordingly rendered in favor of the interpleader and against the plaintiff. Thereafter plaintiff filed his motion to set aside the involuntary nonsuit and grant a new trial on the interplea. Said motion was overruled. In due course the interpleader and the garnishee filed a “motion for damages” in which they move the court to render judgment against the plaintiff in favor of said interpleader and said garnishee for a sum sufficient to indemnify them for [276] reasonable attorney’s fees in attending and answering and defending their rights in the ease and “pray judgment against the plaintiff in the sum of $250 as the damages suffered by them by reason of the aforesaid litigation.” The learned trial judge on a hearing of this motion allowed the garnishee $100 for expenses in answering in the proceeding, such allowance to be taxed as costs against the plaintiff and to be paid as part of the costs of the proceedings, and overruled the motion for damages and for an allowance of attorney’s fees to the interpleader. The interpleader thereupon filed his motion to set aside the order overruling his motion for an allowance for damages and award a new trial thereon; the same being overruled the interpleader brings this appeal. The sole question before us is as to whether or not an interpleader brought into court under section 2439, Revised Statutes of Missouri, 1909, who upon a hearing of the interplea has judgment rendered in his favor, is entitled to an allowance to recover his expenses, including a reasonable attorney’s fees, and to have the same taxed as costs in the case. We have carefully read all the authorities cited by the learned counsel for the appellant but fail to find therein any authority for the proposition contend-, ed for. It is true, under section 2435', Revised Statutes of Missouri, 1909, that a garnishee is entitled to a reasonable allowance for his trouble and expenses in answering, to be paid out of the funds or proceeds of the property or effects in his hands, if it appears from the garnishee’s answer that he is possessed of property belonging to or is indebted to the defendant, and such' answer of the garnishee is not excepted to or denied. And there is authority holding that under section 2436, Revised Statutes of Missouri, 1909, attorney’s fees may be allowed in favor of a garnishee in garnishment on execution as well , as garnishment on attachment, which fees are to be taxed as costs in the [277] case. [See O’Reilly v. Cleary, 8 Mo. App. 186; Norman v. Eastburn, 230 Mo. 168, l. c. 184, 195, 130 S. W. 276.] But nowhere do we find any statute authorizing an allowance of attorney’s fees to one becoming an interpleader in a case under section • 2439, Revised Statutes of Missouri, 1909, in a garnishment case under execution. The judgment is accordingly affirmed. Reynolds, P. J., and Allen, J., concur.