Interpleader-Order under the Code.

Code for the service of an answer or demurrer.
Life Insurance Co. v. Lawrence, 28 How. 435.

Washington

g. Costs. Where an action of interpleader has been properly commenced, it necessarily follows that the complainant is entitled to his costs out of the fund in court. Atkinson v. Manks, 1 Cow. 691. And, as between the defendants, costs will be awarded to the one who succeeds in substantiating his claim to the fund or thing in dispute. Cowtan v. Williams, 9 Ves. Jr. 107; Aldridge v. Mesner, 6 id. 418.

Section 4. Order under the Code. a. Application, when made. As the remedy given by the Code, in the form of an order of interpleader, can only be obtained by a defendant against whom an action is pending,upon a contract or for specific real or personal property, and against whom a person not a party to the action makes a demand for the same debt or property, it follows that no application for the order can be made by such defendant until he has been served with the complaint in such action, because, until the complaint is served, he must necessarily be ignorant of the fact that the adverse claims made against him are identical. It is also required that the application should be made before answer. Code, § 122.

The affidavit which is used to obtain an interpleader, order ought to show that the application is made before the service of an answer; but this objection may be waived, or the affidavit amended. Frost v. Heywood, 2 D. N. S. 801; 7 Jur. 179; 21 L. J. Exch. 242.

b. Who may apply. The application for the order can be made only by a defendant against whom an action is pending upon a contract, or for specific real or personal property. In no other case is an application authorized by the Code. Code, $122.

c. Notice. The defendant is required by the Code to give notice of the application to the plaintiff, who has commenced the action against him, and also to all other persons not parties to the action, who make a demand against him for the property in litigation. Code, § 122. Unless a shorter time is fixed by an order to show cause, the notice of the application must be served at least eight days before the time appointed for the hearing. Code, § 402.

Affidavits-Notice of motion for an order of interpleader.

d. Affidavits. The application must be made upon an affidavit of the defendant, showing:

1. That an action upon contract, or for specific real or personal property, is pending against him in which issue has not been joined.

2. That a person not a party to the action has made a demand against him for the same debt, duty, or property.

3. That he is not in collusion with said person.

4. That he is indifferent to the claims of either party; and, 5. That he has no interest in, and has made no claims upon, the property in controversy, but is ready and willing to deposit the same in court to abide the event of the action. Code, § 122; Dreyer v. Rauch, 10 Abb. N. S. 343.

Notice of motion for an order of Interpleader. (Title of cause.)

Please take notice: That upon the affidavit of James Smith, a copy of which is herewith served upon you, and upon the complaint herein, the defendant will apply to this court, at a special term, to be held at

day of

in the
187 at

of on the o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order to substitute O. P. of in his place, as defendant in this action, and to discharge this defendant from liability to either the plaintiff herein or the said O. P. concerning (state subject of the adverse claims), mentioned in the complaint, upon this defendant's paying into court the sum of dollars, the amount claimed in the summons herein (or upon the defendant's transferring the property mentioned in the complaint to such person as the court may direct), or for such other and further relief as to the court may seem just.

It is not strictly necessary that the defendant should allege that he is ignorant of the rights of the respective claimants, and does not know to which he may pay the money or deliver the property in his hands. Dreyer v. Rauch, 10 Abb. N. S. 343. But such an allegation will be proper, and its insertion in the affidavit will be in conformity with the more strict and, perhaps, safer rule of

Affidavit to obtain order of interpleader.

practice. See Wilson v. Duncan, 11 Abb. 3; Shaw v. Coster, 8 Paige, 339.

Where the party seeking the order is an officer of a corporation or association, the affidavit should state that the company or corporation, and not the person making the affidavit, did not collude with the party making the demand. This allegation should not be made positively, but to the best of the knowledge and belief of the person making the affidavit. Bignold v. Audland, 11 Sim. 23.

e. The order. On the receipt of such affidavit the court may, in its discretion, grant an order substituting the stranger to the suit in the place of the defendant against whom he makes his demand. The order will also discharge the defendant from liability to either party, upon his depositing, in court the amount of the debt, or delivering the property, or its value, to such person as the court may direct. Code, § 122.

being duly sworn, says:

I. That he is the defendant in the above-entitled action. II. That the complaint herein was served upon him on the day of 187 and that no answer to the same has

as yet been served or filed.

III. That the action is brought to recover (state cause of action, specifying the precise thing claimed).

of

IV. That the same debt (or property) is claimed by one O. P., (state how such claim is made).

V. That the defendant is ignorant of the rights of the respective claimants, and is not acting in collusion with either of them. VI. That the defendant is indifferent to the claims of either party, and has no interest in, or claim upon, the moneys (or property) held by him, but that he is ready and willing to pay such moneys into court, to abide the event of the action (or to deliver the property to such person as the court may direct), upon being discharged from liability to either claimant. (Jurat.)

JAMES SMITH.

If the defendant is not in a position to comply with these conditions no order can issue. Vosburgh v. Huntington, 15

Abb. 254.

Appeal Order of interpleader.

The court may further order that, if the person thus substituted in the place of the defendant shall not, within twenty days after service of a copy of the order and of the complaint, appear and defend the action, the deposit shall be paid over to the plaintiff. Van Buskirk v. Roy, 8 How. 425; Fletcher v. Troy Savings Bank, 14 id. 383.

f. Appeal. An appeal may be taken from the allowance of the order. Wilson v. Duncan, 11 Abb. 3.

(Title of cause.)

Order of Interpleader.

(Caption.)

On reading and filing the affidavit of James Smith, and on motion of Martin McMartin, of counsel for the defendant, and after hearing R. H. Rosa, of counsel for the plaintiff, and W. H. Smith, of counsel for O. P.

ORDERED: That on the payment by the defendant to the clerk of the county of of the amount claimed in the summons herein, principal and interest, less ten dollars costs of this motion, within five days from the entry of this order, O. P. be substituted as defendant in this action, in place of James Smith, the defendant above named, and that the said James Smith thereupon be discharged from liability to either the plaintiff above named or said O. P.

And it is further ordered, that if the said O. P. does not appear and defend this action within twenty days after service upon him of a copy of this order, together with a copy of the complaint herein, the plaintiff may apply ex parte for an order that the money so deposited be paid over to him.

Or, where the subject of the controversy is to obtain the delivery of specific personal property, the directory part of the order may be in the following form:

ORDERED: That the defendant deliver the property mentioned in the complaint herein to (Robert Lansing, Esq.), of

who is hereby appointed receiver thereof; and that the said Robert Lansing hold the said property subject to the further

order of this court.

That O. P. of

be substituted as defendant in this action in the place of the above-named James Smith, who shall, upon delivery of the said property to the said receiver, be discharged from all liability therefor, either to the plaintiff or to the said O. P.

That within

days after entry of this order, the plaintiff serve a summons and a copy of his complaint, amended as he may be advised, with a copy of this order, upon the said O. P., and that the said O. P. answer such complaint within twenty days thereafter.

Order of interpleader.

And it is further ordered, that, if the plaintiff neglect to serve his summons and complaint and this order, as herein directed, the defendant James Smith may apply to the court for an order dismissing the action, and that the said property be delivered by the receiver to the said defendant James Smith, and that, if the said O. P. neglect to answer such complaint, if served as herein directed, the plaintiff may apply, on notice, for an order that said property be delivered by the said receiver to the plaintiff. dollars costs be allowed to the said James Smith, to be paid by the plaintiff, and to be allowed to him in case of his final recovery of judgment.

That