Lackmann v. Klauenberg

HALL, J.

This is an appeal from a judgment entered after order sustaining demurrer to plaintiff’s second amended complaint. The action was brought to compel the defendants, Sophie Klauenberg and P. W. Webber to interplead as to their rights to a sum of money in the hands of plaintiff. The demurrer is a general one, filed by the Klauenbergs, and the question presented is as to the correctness of the ruling of the court sustaining the demurrer; in other words, does the complaint state a case sufficient to entitle plaintiff to a judgment that the defendants interplead as to their rights to the money in the hands of plaintiff ?

The essential facts set forth in the complaint are that defendant Webber brought an action against the defendants Sophie and Herman Klauenberg, in which a writ of attachment was issued and placed in the hands of plaintiff, as sheriff, for service, and under which he levied upon certain personal property alleged to belong to Sophie Klauenberg and Herman Klauenberg, Sophie Klauenberg in lieu of giving an undertaking, deposited with the plaintiff $175, and the property was thereupon released from the levy. Subsequently Webber obtained judgment against Herman Klauenberg for $106 and $45 costs, but did not obtain any judgment against Sophie Klauenberg. Webber thereupon procured a writ of execution to issue, and claims to be entitled to said sum of $175, or so much as will satisfy his judgment against Herman Klauenberg, while Sophie Klauenberg brought an action in the justice’s court, against plaintiff to recover the said sum of $175, in which she alleged that the said sum of $175 was deposited with plaintiff to secure the release of her property and not that of Herman Klauenberg, and in said action judgment has been given against plaintiff for the said sum. Plaintiff has appealed from said judgment, and said appeal is now pending and has not been decided. The complaint alleges that plaintiff has no claim or interest in said money, and offers to deposit same in court to be disposed of as the court may direct. It does not appear from the complaint

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what plea, answer or defense plaintiff made to the action in the justice’s court. It thus appears from the allegations of the complaint that plaintiff has in his possession the sum of $175, in which he has no interest, and to which he makes no claim, but for which .defendant Sophie Klanenberg makes claim for the entire amount, and has brought suit, which is now pending and undetermined, for the entire amount, and to which defendant Webber makes claim for so much as will satisfy his judgment against Herman Klanenberg. Section 386 of the Code of Civil Procedure, after making provision for the substitution of a second claimant in place of the defendant in certain cases, provides that “whenever conflicting claims are or may be 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 is further provided that the action of interpleader may be maintained, and the plaintiff be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, but are adverse to one another. The facts set forth in the complaint in this ease bring it within the provisions of the statute above quoted, unless the fact that the action in the justice’s court had gone to judgment bars the right to an interpleader.