Interlocking Stone Co. v. Scribner

BURNETT, J.

The action was brought in interpleader by plaintiff under section 386 of the Code of Civil Procedure, providing that “Whenever conflicting claims are, or may be,

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"made upon a person for, or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves.”

It appears by the complaint that plaintiff is indebted on an open account to the defendant M. G. Scribner in the sum of $577, and on a promissory note, dated July 30, 1909, for the amount of $275.50 and interest, and on another note, of January 8, 1909, for the amount of $820.10 and interest; that there was, at the time of the commencement of the action, standing upon its books in the name of M. G. Scribner, 6,101 shares, and in the name of defendants, Neal and Scribner, 6,201 shares of the capital stock of plaintiff corporation; a detailed statement is set out of certain writs of execution and writs of attachment issued against said Scribner in various causes and, by process of garnishment levied upon all the property and debts in the hands of plaintiff and belonging or owing to said Scribner; that the defendant E. E. Rollins claims to be the owner by assignment, for value, and before maturity, and before the levy of said attachments and executions, of the two said promissory notes; that, on May 26, 1910, the said defendant, M. G. Scribner, commenced an action in the superior court of Alameda county against plaintiff herein to recover the said sum of $577 due to said Scribner on said open account. The foregoing facts and others are alleged in a manner to make it plain that the defendants should be required to interplead concerning their claims to the moneys and property referred to in the complaint.

The defendant, E. E. Rollins, appeared and filed a cross-complaint and made plaintiff herein a party defendant thereto. In the cross-complaint the said two promissory notes were set out and it was alleged that the same were, subsequent to their execution and prior to the filing of said cross-complaint, duly assigned, indorsed and delivered to said cross-complainant. "With said cross-complaint the said Rollins filed an affidavit and undertaking and had a writ of attachment issued against the property of the said Interlocking Stone Company. Appellant states that this writ was levied upon the property of said company, but as to this the record is silent. The plaintiff herein moved the superior court to dis