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Mooney v. Newton

December 31, 1919

PAT MOONEY AND DESERT PRODUCE COMPANY (A CORPORATION), RESPONDENTS, V. S. H. NEWTON, APPELLANT.


Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.

O. H. Mack and C. L. Richards, for Appellant.

H. R. Cooke and Frank T. Dunn, for Respondents.

By the Court, Ducker, J.:

The respondent Pat Mooney brought an interpleader suit in the district court of Nye County against Desert Produce Company, a corporation, C. Craig and S. H. Newton and Henry Martin. The substance of the complaint appears in the following statement: On December 8, 1916, plaintiff made and delivered to defendant Craig two promissory notes of $100 each, with interest at 12 per cent per annum, and on the 11th day of September, 1917, said notes were overdue and still in the possession of Craig. The defendant Desert Produce Company on the last date mentioned served upon plaintiff at Tonopah, Nevada, a writ of garnishment against the money owing by plaintiff to said Craig upon the notes, which writ issued out of the district court of the Fifth judicial district of the State of Nevada in and for Nye County, in an action brought by the said company against the said Craig. Shortly thereafter one of the defendants, Henry Martin of Tonopah, Nevada, made a demand upon plaintiff for the payment of said notes to him, which demand was refused for the reason that the sums due upon the promissory notes had already been attached. On the 21st day of June, 1918, an action was commenced in the justice's court of Reno township, Washoe County, Nevada, entitled S. H. Newton v. Pat Mooney, where in said Newton alleges that he is the owner and holder of said notes. On said last-mentioned date Newton caused a writ of attachment to issue out of said justice's court and to be delivered to the constable of Tonopah township, Nye County, Nevada, who

[43 Nev. 441, Page 443]

did then and there on the 25th day of June, 1918, levy upon and attach the property and effects of respondent. Respondent further alleges in his complaint that he has no beneficial interest in or claim upon the sums of money due upon said notes, and was ready and willing on the 11th day of September, 1917, and at all times thereafter, to take up and pay said notes, but does not know to which of said claimants he ought of right to pay the money due thereon and cannot safely pay the same to any one of them without hazard to himself; that he is ready and willing and does herewith tender to and deposit with the clerk of the said district court said full sum of $200 as principal due upon the notes, and the sum of $18 as interest from the date thereof to September 11, 1917, the date upon which the said sums of money were first attached by the Desert Produce Company, to be subject to such further orders or disposition as the court may deem meet and proper to make in that behalf; that this suit is not brought by collusion with either or any of the defendants.

The prayer asks judgment and decree; that defendants be restrained by injunction from further prosecuting or instituting proceedings or process against respondent in relation to said sums of money; that they be required to interplead concerning such claims and set forth their several titles, and settle and adjust their demands between themselves; that the clerk of said district court, or some other suitable person, be authorized to receive and hold said money pending such litigation, and also to demand and receive said notes and deliver the same to respondent; that he be discharged from all liability in the premises; that he be paid his costs out of said sum of money; and for general relief.

The Desert Produce Company answered. After admitting most of the allegations of the complaint, for a further answer and affirmative defense and by way of cross-complaint against the respondent and its

[43 Nev. 441, Page 444]

co-defendant, it alleges, in substance, the commencement of an action against its co-defendant, Craig, in said court on the 8th day of September, 1917, and the recovery of a judgment against him in the sum of $8,854.96 on the 18th day of April, 1918; that during the pendency of the action a writ of attachment was duly issued and levied on all of the right, title, and interest of Craig in and to the said promissory notes; and that a writ of garnishment was duly served upon respondent Mooney, and return made thereto by him to the substance and effect that he was personally indebted to Craig in the sum of $200 upon said promissory notes which were then due and ready to be paid; that after the rendition and entry of judgment an execution was duly issued to the sheriff of the county, which was levied by him and demand made on respondent for the payment of said $200 and accrued interest, who refused to pay the same on the ground that the said promissory notes were not delivered up for cancellation; that said judgment still remains in full force and effect and unsatisfied to the amount of $7,822.96; and that the company was entitled to have payment of said $200 and accrued interest thereon made to the sheriff of the county to be applied in satisfaction upon said judgment. Judgment is demanded that the co-defendants be adjudged to have no right, title, interest, or claim in or to said $200 or accrued interest or the notes evidencing said indebtedness; that said notes be ordered delivered to the clerk of the court for cancellation and surrender to respondent Mooney upon the payment by him to said sheriff of the money due on such notes; and for other relief.

A demurrer was interposed by appellant to the complaint herein on the grounds that it does not state facts sufficient to constitute a cause of action; that the court has no jurisdiction of the persons of the parties, or the subject-matter of the action; and that it is ambiguous, unintelligible, and uncertain. A demurrer was also

[43 Nev. 441, Page 445]

interposed by appellant to the company's affirmative defense and cross-complaint on the first two grounds mentioned. These demurrers were overruled by the court, and appellant's default for failure to answer within the time required was duly entered. Martin and Craig made no appearance. The case was tried before the court upon the issue made by the complaint and answer, and judgment entered that the interpleader suit was properly and necessarily commenced by the respondent Mooney by reason of the unfounded claim to said $218 made by said Newton. An attorney fee fixed at $50 and costs amounting to $10.30, aggregating the sum of $60.30, were allowed respondent Mooney to be deducted by the clerk and paid from the sum of $218 deposited. Judgment was also rendered in favor of the defendant company and ...


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