Rochelle v. Pacific Express Co.

120 S.W. 543, 56 Tex. Civ. App. 142, 1909 Tex. App. LEXIS 449

• Court: Court of Appeals of Texas
• Decided: May 20, 1909
• Status: Published

Opinion

LEVY, Associate Justice.

On the night of December 1, 1906, W. J. Grissett, the joint express messenger and baggageman for the Pacific Express Company and the St. Louis Southwestern Bail way Company of Texas, ivas murderously assaulted and robbed at Bed-water, Texas, while performing the duties of his employment; and immediately thereafter, the offending person or persons being unknown, said companies, appellees here, jointly and in writing publicly offered a reward for the arrest and conviction' of the person or persons guilty of said robbery. Thereafter one P. E. Tabor, being the sole offender, was arrested for the offense, and duly and legally convicted thereof in the District Court of Bowie County, Texas, and sentenced to the penitentiary for life; which judgment, on appeal to the Court of Criminal Appeals, was affirmed. Each 'appellant, residing in different counties of Texas, claiming to be the party entitled to the reward offered, made claim for the same. The appellees, to prevent the hazard of several suits for the same demand by the several separate claimants, and admitting that they owed the reward to the party or parties who apprehended, arrested and convicted the said P. E. Tabor, filed their petition, in the nature of a bill of interpleader, in the District Court of Bowie County, Texas, tendering into court what they claimed to be the amount of the reward offered, alleging that they had no interest in the amount beyond their desire to pay same to the proper party and not to have to pay the same but once, they being unable to determine which of the defendants claimed rightfully. The defendants in the case being cited, each appeared and answered, setting up their respective rights. The case was tried before the court without a jury, and judgment was entered that each defendant recover equally the amount of the reward tendered into court. All the defendants appeal from the judgment and seek to have the same revised for errors assigned.

After stating the case.—We will first consider the appellant Tilley’s third and fourth assignments, wherein it is contended by him that the court erred in not sustaining his plea in abatement of this suit. As seeking to abate the instant case this appellant plead and proved, as plead by appellees in their petition, that prior to the filing of the instant case he had instituted a suit in the District Court of McLennan . County, wherein he sought to recover of the appellees herein on account of the offer of the reward, which is the basis of the subject matter of the instant suit, and to have adjudicated the rights of the other appellants in the said reward, with the exception of that portion of the reward offered for the recovery of certain stolen -money. It was shown that each defendant in the suit was served with citation, and that the suit was pending undetermined at the time injunction in the instant ease, which was prayed for, was issued and served, and at the time of-the trial of this case; but it does not appear that answers were filed in the suit by any of the defendants. We do not think the court erred in overruling the plea in abatement. The action by appellees in this case, which is sought by this appellant to be abated, is in the nature of a bill of interpleader. The equitable remedy of interpleader is recognized and allowable, in the proper case, in this State. Williams v. Wright, 20 Texas, 500; Iglehart v. Moore, 21 Texas, 501; Foy v. East Dallas Bank, 28 S. W., 137. fit is quite certain, and unnecessary to cite authority, that an action for interpleader is proper where, as in this case, a reward has been publicly offered to any one of the general public who will furnish evidence to secure the arrest and conviction of an unknown offender, and several persons separately, and each residing in different counties; claim to have furnished the 'evidence and to be entitled to the same reward. The appellees’ petition alleged all the requisites entitling them to the remedy. 5 Pomeroy Eq. Jur., sec. 39. Having determined that the remedy, which it is purely, of interpleader was allowable to appellees, and that the instant case was a proper one for interpleader, was it incumbent upon appellees to interplead all the parties in the suit in McLennan County? In the light of the principle allowing the remed3r, and the practice in respect thereto, of interpleader, it would seem to be the right of the complainant in proper and seasonable time to select the proper forum having jurisdiction of all the parties and. the amount, to file his interpleader, as was done by appellees in this case. According to the rules laid down, the proceeding is ordinarily commenced by original bill, and not cross-bill. In the absence of a prescribed procedure by statute, the equity practice is followed. The bill is allowed to be filed after a suit by a claimant has been instituted, and it is no valid objection to the bill merely that another suit is pending in which complainant is defendant. The object of the proceeding is to protect the complainant, and not the parties who claim the right of him, “from the vexation attending upon the suits which are or may be instituted against him.” 5 Pomeroy Eq. Jur., sec. 39; Williams v. Wright, supra, at 503. The remedy of interpleader is allowed as a substantial right to the complaint, and he can seek the proper forum, to the end that in one principal action claimants might settle the contest among themselves, and not with him. He can enjoin pending suits against him, and thereby abate such suits pending the determination of his suit in interpleader. It is recognized, as an exception to the general rule, that it is orderly and allowable to interfere by injunction with proceedings in another court against complainant for the same debt, fund or duty, because of the peculiar nature of such actions and the necessity of drawing the entire litigation into the one principal action. 1 High on Injunctions, sec. 53; Westmoreland v. Miller, 8 Texas, 169. If he can abate pending suits by injunction it is in proper reason because of the fact that the bill of interpleader becomes the principal action between the panties. It follows, we think, that appellees had the right to select the proper forum in which to file their bill, and that they did so in seasonable time! Appellees having the right, as we think they did, to file an origináP bill of interpleader, and the District Court of Bowie County having full jurisdiction of the amount and the parties, under subdivision 4 of article 1194 Revised Statutes, it was not a sufficient ground to abate •the instant suit because it was permissible, if it were, to interplead all the parties in the suit in McLennan County. Appellees in their bill alleged that "the District Court of McLennan County was “without jurisdiction to hear and determine the rights of all parties hereto, and' that some of the said defendants will file, if they have not already done so, a plea of privilege to be sued in their own county, and that said plea of privilege under the laws of Texas will be good and be sustained, and the rights of defendants so pleading will not be and can not be adjudicated and determined and concluded in said suit.” According to the allegations in Tilley’s petition, none of these appellants resided in McLennan County. Tilley’s suit, by his petition, stood in the legal attitude of being an action for debt by 'him, and not a suit for specific property against appellees. He claimed the whole of the reward, except for the recovery of the money, and alleged that the appellants, besides himself, had no claim thereto. Therefore in his suit for debt the other -appellants herein, having no joint or equal interest in Tilley’s debt, were neither necessary nor proper parties to the suit. Being neither necessary nor proper parties to his suit, the District Court of McLennan County, as against their plea, was without jurisdiction to conclude the appellants in the controversy as plead by Tilley. If the District Court of McLennan County was without jurisdiction over the appellants, then the appellees’ allegation ivas true. .One of the recognized grounds of jurisdiction for injunction in a suit of this nature, where several separate claimants sue or threaten suit for the debt or duty, is, as we quote from School Dist. No. 1 of G. H. v. Weston, 31 Mich., 86, “the danger of being harassed with two suits for the same demand.” The pending of a prior suit will not abate the second if the first. be so defective that the second is necessary to secure the demand. Langham v. Thomason, 5 Texas, 127. The instant case became and was a different action from Tilley’s suit. Here the controversy was not an 'action for debt against appellees, but, the money being in court, it became a claim of ownership and possession, or possessory action, to a specific fund between the claimants. The appellant Tilley was properly restrained in the premises from prosecuting ■his suit in McLennan County.

r The objection by the appellant Tilley that there is not identity in the claim in his suit -and the instant case *is without merit. The amount of the reward is the basis of action in both cases. The identity of the subject matter, therefore, is sufficiently certain as to the reward for the arrest and conviction. It is no valid objection to the bill of interpleader, that a particular claimant claims less of the particular funds than "the whole amount tendered into court.

The appellant Tilley directed special exceptions to the appellees’ petition, which were by' the court overruled; and he complains of. this ruling of the court in the -second assignment of error. The complainant’s petition, which was sworn to, sufficiently negatives, we think, any collusion with the defendants, or any of them, and the court did not err in overruling the exceptions. The jurat, which will be understood as referring to the facts stated in the bill, stated that the facts were true.

All the appellants contend, under proper assignments of error, that the court erred in construing the' written offer of reward by appellees. We are of the opinion that the word “each” in the offer relates and refers to the “guilty person or persons,” and that the court did not err.

The appellants, by appropriate assignments, contend that the court erred in apportioning the sum of money tendered into court by the appellees equally among the claimants. The pleadings of the -several claimants, except Rochelle, Traynor and Goforth, who answered jointly, assert that they acted for themselves and independant of- any and all other persons, and claim the full amount of money. There are no findings of fact by the court in the record.

The offer of reward was for the arrest and conviction of the offender, and was not by its terms apportionable. To entitle either claimant to recover, he must show that he substantially met the terms of the offer and is entitled to the sum of money, or that they, acting in concert or together, accomplished the purposes of reward and earned the money. The evidence entirely supports the allegations and contentions of appellants (treating, as it were, Bochelle, Traynor and Goforth, because of their joint answer and contention, as one appellant), and which we find as a fact, that there was no previous agreement between the claimants to act in concert or together to accomplish the purposes of the reward and earn the money, and that they did not do so. In the view of appellants’ contention and the above finding from the record we assume, to support the court’s findings involved in the decree, that the court did not rest the decree on such ground. The court found that each claimant was equally entitled to the money. In such finding by the court there is necessarily involved, from the record, the further finding, to support the decree, that the terms of the offer were not met and the purposes of the offer of reward were not accomplished and the money earned by any claimant. There is support in the record for such finding of fact by the trial court, and which we adopt, and we are not authorized to say, from the record, as a matter of law, that any one claimant met the terms of the offer of the reward. From the finding of fact that the claimants did not by previous agreement or concert of action accomplish together the purposes of the reward, and the further finding, as is involved in the finding by the trial court, that no claimant met the terms and accomplished the purposes of the offer of reward, it follows that appellants’ assignment complaining of the apportionment must be overruled. Appellees could more forcibly complain of the decree, in such findings, that appellants were allowed a recovery of the funds; but as they do not complain, but by not complaining acquiesce in the decree, the appellants can not complain that they each received a part of the fund. Neither can the appellants, in the premises and findings, complain of the allowance to appellees of attorney’s fees out of the fund.

If the court, finding that the claimants were not acting together and th.at no claimant met the terms of the offer, but further finding that each claimant furnished some information of independent facts, but not enough to earn the reward, and awarded to each appellant an equal amount of the fund in his hands, the appellees not complaining here or below, the appellants are not in position to complain of such award or apportionment.

The judgment was ordered affirmed.

Affirmed.