Farmers & Merchants State Bank v. Goe

202 P. 835, 110 Kan. 65, 1921 Kan. LEXIS 163

• Court: Supreme Court of Kansas
• Decided: December 10, 1921
• Docket: No. 23,298; No. 23,299; No. 23,300; No. 23,301; No. 23,302; No. 23,303; No. 23,304; No. 23,305; No. 22,306; No. 23,307; No. 23,308
• Status: Published

Opinion

The opinion of the court was delivered by

Marshall, J.:

These appeals have been briefed and were argued together; all involve the same questions. The briefs have been filed in case No. 23,299, Henry Koerner v. N. D. Goe et al., and the opinion is written in that action.

The plaintiff sued the defendants, N. D. Goe, C. C. Nelson, C. C. Nelson, trustee, Geo. 0. Wolf, A. G. Penman, W. C. Richey and M. J. Munn, and C. C. Nelson Oil Syndicate for wages due for labor performed in drilling an oil well which the defendant, N. D. Goe, and another person, E. A. Soles, not a party to this action, had contracted to drill for the C. C. Nelson Oil Syndicate. The plaintiff attached all the property at and about the well as the property of all the defendants. The El Dorado National Bank held a chattel mortgage on a portion-of the attached property and inter-pleaded in the action under section 45 of the code of civil procedure. In five causes of action, the bank as interpleader claimed that portion of the attached property covered by the chattel mortgage. In a sixth cause of action, the interpleader set up against the C. C. Nelson Oil Syndicate a claim for money on an assignment from Goe & Soles to the interpleader of the proceeds from the drilling contract, day work, and other services performed. Judgment was rendered in favor of the plaintiff and against the defendants for the amount sued for and in favor of the interpleader for the possession of the'property covered by the chattel mortgage. The interpleader’s sixth cause of action was stricken out on the motion ■of the plaintiff. A motion of the interpleader to strike out a part •of the answer filed by the C. C. Nelson Oil Syndicate to the inter-plea and to make the answer more definite and certain was denied. From the orders striking out the sixth cause of action set up in the interplea and denying the motion of the interpleader to strike out parts of the answer filed by the C. C. Nelson Oil Syndicate and to make that answer more definite and certain, the El Dorado National Bank appeals.

1. The principal complaint of the interpleader concerns the order of the court striking the sixth cause of action out of the interplea. That cause of action did not in any way affect the attachment lien of the plaintiff nor his right to recover from the defendants; it did not in any way concern the controversy between the plaintiff and the defendants. That cause of action was entirely foreign to every other issue in the action and to everything connected with it. Even a defendant by answer has no right to sot up facts not related to those alleged by the plaintiff. (31 Cyc. 157; Northern Light Co. v. Blue Goose Co., 25 Cal. App. 282, 289; Bowers v. Bound, 14 Ind. 218; Aull v. Railroad, 136 Mo. App. 291, 297.) The interpleader had no right to litigate with the C. C. Nelson Oil Syndicate anything foreign to the subject matter of the litigation presented by the plaintiff.' (20 R. C. L. 692.) • The plaintiff was seeking to recover judgment for the wages due him and to provide, property from the sale of which, proceeds might be realized with which to pay the judgment. The action should be confined to the questions presented by the plaintiff in his petition and to his right to the property attached by him. If the inter-pleader had a controversy between itself and the C. C. Nelson Oil Syndicate, not connected with the plaintiff’s cause of action, and attempted to litigate that controversy in the action commenced by the plaintiff, such controversy should be excluded on the application of the plaintiff. The statute giving the claimant of attached property the right to interplead in the attachment proceeding and show his right to the property reads:

“Any person claiming property, money, effects or credits attached as the property, money, effects or credits of another, may interplead in the cause, verifying the same by affidavit made by himself, agent or attorney, and issues may be made upon such interpleader, and shall be tried as like issues between plaintiff and defendant and without any unnecessary delay. In all cases of interpleader, costs may be'adjudged for or against either party, as in ordinary cases.”,. (Civ. Code, § 45.)

It was not, error to strike out the interpleader’s sixth .cause of action. ■ ,. , ,

2. The plaintiff answered the interplea of the El Dorado National Bank, denied the allegations of-the intervening petition, and alleged that the interpleader held no valid chattel mortgage on any. of the attached property. An examination of the.answer of the plaintiff to the interplea does not show- that he was pleading to the- matter set up in the interpleader’s sixth cause of action. It is true that the plaintiff’s answer contained a general-denial of all the matters set out in the interplea, but that general denial should be construed as a denial of facts alleged by the interpleader concerning its mortgage.' lien on the property attached. • The answer of the plaintiff did not waive his right to object to the litigation of the questions presented by the sixth cause of action of the interplea.

It is urged that the plaintiff waived the right to object by appearing and cross-examining at the taking of a deposition on behalf of the interpleader. That deposition was of N. D. Goe, and concerned the mortgage given by him and E. A. Soles to the El Dorado National Bank on a portion of the attached property to secure the payment of money borrowed by Goe and Soles to purchase the tools with which to drill a well and to pay for the work done on it. On that subject, the plaintiff had the right to appear and cross-examine at the taking of the deposition, and did not thereby waive his right to object to the trial of-the matters set out in the interpleader’s cause of action, but the abstract does not show that the plaintiff in any way participated in taking that part of the deposition.

It does not appear that the plaintiff waived his right to object to the trial of the interpleader’s sixth cause of action.

3. The interpleader complains of the order denying its motion to strike out part of the answer of the defendants and to make it more definite and certain. The parts of the answer attacked by the motion related to the sixth cause of action set up by the inter-pleader. -The order striking that cause of action out of the inter-plea made the order on the interpleader’s motion to strike out and to make more definite and certain wholly immaterial ^and, even if error was committed, it was entirely nonprejudicial.

The judgment is affirmed. The judgments in Nos. 23,298, 23,300, 23,301, 23,302, 23,303, 23,304, 23,305, 23,306, 23,307, and 23,308 are also affirmed.