Johnston v. Stimmel

Tlie application which resulted in the order appealed from, was made in pursuance of the order directed by Judge Brown, on the motion to discharge the attachment issued on behalf of the United States, and that order was a conditional one predicated of the voluntary appearance of the United States in this action and submission to the jurisdiction of this court if this proceeding were instituted. The order of Justice Barrett provided for'such voluntary appearance and submission to the jurisdiction of this court in the premises within ten days; and further, that in default of such submission that the plaintiff upon judgment obtained, should be paid the money deposited under the terms of the order.

The learned justice in his opinion said on that subject: “The only remaining difficulty is as to bringing in the United States. That seems, however, to have been settled by the order of the District Court, and the willingness expressed by the United States district attorney to submit to the jurisdiction. The motion should, therefore, be granted upon the money being brought into court and upon the United States district attorney appearing for the United States herein, and stipulating that the United States submits to the jurisdiction and consents that the title to the mortgage debt may be determined herein upon the merits, and that it will abide by the judgment.”

The order was conditional, therefore, and by its terms obviated the objection that this court has no power to implead the United States. The theory upon which both Judges Brown and Barrett acted was that sovereignty would voluntarily appear. If it does not, then the order fails, and the plaintiff is not prejudiced; if it does, then the jurisdiction of this court is established and the proper remedy can be invoked. As matter of justice, the order was decidedly proper. There are two claimants to the fund in court and the debtor should not be obliged to participate in the controversy between them. It is true that the United States is an attachment creditor only, and, it may be, is not in a position to attack the assignment to the plaintiff of the bond and mortgage. Whether a mere attaching creditor can so proceed is a question marked in this State by conflicting opinions and adjudications in the Court and Commission of Appeals (see Thurber v. Blanck, 50 N. Y., *43980; Mechanics and T. Bank of Jersey City v. Dakin, 51 id., 519), and the United States Circuit Court, if tbe controversy were therein continued, might sustain the right of the United States to the fund, provided the assignment were shown, as alleged, to have been fraudulently executed. It is idle to say that there tvas nothing shown on the motion made in this court to authorize the order appealed from. The United States had obtained an attachment and had taken the necessary steps through the proper officer to secure whatever lien upon the fund the attachment could create, and the extent of that lien must depend upon the effect of the: attachment and the rights secured by it. If the issuance of that process established a right to hold the fund, subject to the determination of the question of fraud presented, then there could be no doubt whatever of the character of the claim urged by the United States, or ¿hat the respective claims asserted by it and the plaintiff are such as to warrant the interposition of this court by way of interpleader. The proceeding is within the provisions of section 820 of the Code, which, while they do not introduce any new cause of interpleader, perfect a simple remedy which may be resorted to where previously the only remedy was by action. (1 Yol. Wait’s P., 166, and casefe cited; Townsend’s Code [1870], 122, and cases cited.)

A demand is made against the debtor for the same debt or prop, erty and without collusion. The money which is provided to pay the mortgage debt is claimed by two persons, the plaintiff and the United States, and it is proper that these claimants should conduct any litigation that may be necessary to determine their respective rights. The debtor by providing the fund has done all that he should be called upon to perform. If the United States does not come in and submit its claim to the jurisdiction of this court, as provided by the order appealed from, the interpleader fails and the plaintiff can proceed. For these reasons the order appealed from should be affirmed, with ten dollars costs and disbursements.

Order affirmed, with ten dollars costs and disbursements.