Cronin v. Cronin

The action of interpleader is of equitable origin, and the remedy provided by the Code is merely concurrent (9 How. Pr., 193; 1 E. D. Smith, 665; S. C., 8 How. Pr., 45; 14 id., 505). The principles which govern the remedy, either in equity or under the Code, are alike, and the rule formerly prevailing as to costs should, as far as practicable, be applied to the present practice. It is evident that the general provisions of sections 8228 and 3229 of the Code as to costs, were not intended to include interpleader- actions, where (as here) each party prevails in estabhshing title to a substantial part of the fund in dispute. The case, in consequence, falls within section 3230, which leaves the award of costs discretionary with the-' court. This construction agrees with that approved by Willard in his work on Equity Jurisprudence (Potter's ed.), 321, where he says, that the Code (sec. 306 of old, and sec. 3230 of new) “ vests the court with the same discretion in such actions as existed before,” and under the former practice costs were not matter of right in interpleader cases. They rested in the discretion of the court (Bedell agt. Hoffman, 2 Paige, 199). This also accords with the present general legislative intent (2 R. S., 617, § 20; 3 Wait's Pr., 468, 469; Code, § 3234). The legislature certainly did not intend, even under the interpleader • allowed by the Code, that a defendant whose defense was meritorious, and who succeeded in it to the extent of prevailing in the action equally with the plaintiff, should be arbitrarily mulcted with costs, “ as of course,” for presenting a claim fully as just as that made by his adversary. Such an interpretation would be harsh and oppressive, and tend to establish an immutable rule which might, in some cases, work great injustice. The intention was to avoid this possible result by leaving the question of costs in such actions to the discretion of the court,., *186that they might be allowed or withheld according to equitable principles and in furtherance of justice. This intent (if it required further evidence to make it manifest) will be found in the statute (3 R. S., 6th ed., 378, § 392), which provides that where the title to a fund on deposit with a savings bank is dis,-puted, an interpleader may be allowed, to the end that the ■' rival claimants interested in the dispute may be brought into • the litigation and the bank allowed to drop out, and which •further provides that “the question of costs in the actions referred to shall, in all cases, be in the discretion of the court, and may be charged upon the fund affected by such action.” It is clear, therefore, that the award of costs rests entirely in the discretion of the court, and the only question left is to exercise the discretion for the best interests of all concerned, keeping in mind the smallness of the fund. The plaintiff and defendant are husband and wife; they disagreed, and, in consequence, separated. Law suits followed, and this is one of them.

As usual, in such intestine quarrels, each of the parties Í3 right to an extent, and beyond that wrong. The interests of all will be best subserved by holding that each of the litigants have the portion of the fund to which they are respectively entitled ; that neither have costs against the other; that the costs of the respective attorneys be not charged on the fund; and that the attorneys on each side be left to regulate his fee with his client when the fund is paid over.

The disbursements incurred by teach of the litigants in determining the title to the fund, should, as a necessary incident, be taxed and charged upon the fund, but the application for furither costs or allowance will be denied. A decree in accordance therewith may be submitted.