Opinion
7 Div. 892.
June 20, 1929. Rehearing Denied October 31, 1929.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Hugh Walker, of Anniston, for appellant.
A party seeking an interpleader can obtain for himself no specific relief, and must have no claim or interest in the subject-matter. 4 Pomeroy's Eq. Jur. (3d Ed.) § 1320; Modern Order, etc., v. Merriman, 204 Ala. 197, 85 So. 473. A bill of interpleader cannot be sustained, except against defendants between whom there exists a privity. Standard Ency. Proc., 184; Enterprise L. Co. v. First Nat. Bank, 181 Ala. 388, 61 So. 930. The same thing, debt, or duty must be claimed by all the parties against whom relief is sought. 4 Pomeroy, § 1322. If the bill shows that complainant is fully informed of defendants' rights and his own liability, or if it shows one of the defendants is entitled to the thing, debt, or duty, it is demurrable. 4 Pomeroy, § 1328. Complainant must bring into court the entire fund. 4 Pomeroy, § 1328. Before materialmen can have a balance prorated, their claims must be reduced to judgment. Code 1923, § 8855. Appellant, having given notice to the owner and filed the required statement in the office of the probate judge, has a lien on the balance due the contractor. Code 1923, § 8840; McDonald v. Stern, 142 Ala. 506, 38 So. 643.
Knox, Acker, Sterne Liles, of Anniston, for appellee.
The bill is sufficient. Modern Order, etc., v. Merriman, 204 Ala. 197, 85 So. 473.
The demurrer to the bill was overruled.
The bill as amended was filed under the general equitable doctrine of interpleader, or in the nature of interpleader. Section 10390, Code of 1928. The rules governing such pleading are stated in Marsh v. Mutual Life Ins. Co., 200 Ala. 438, 76 So. 370; Cloud v. Dean, 212 Ala. 305, 102 So. 437; Alexander City Bank v. Home Ins. Co., 214 Ala. 544, 108 So. 369; Johnson v. Blackmon, 201 Ala. 537, 78 So. 891; Awbrey v. Estes, 216 Ala. 66, 112 So. 529; Schrader Co. v. A. Z. Bailey Groc. Co., 15 Ala. App. 647, 74 So. 749; Scott v. Parker, 216 Ala. 321, 113 So. 495; 4 Pomeroy, Eq. Jur. (3d Ed.) § 1328; and Crass v. M. C. R. Co., 96 Ala. 447, 11 So. 480, which is the leading case in this jurisdiction on the subject.
It was proper, as to the balance due the contractor by the owner, that rival claimants have their respective liens (section 8840, Code) or claims declared by the court and a due apportionment be made. Grimsley v. First Ave. Coal Co., 217 Ala. 159, 115 So. 90; Sturdavant v. First Ave. Coal Co. (Ala. Sup.) 122 So. 178; Richardson Lumber Co. v. Howell Graves, 219 Ala. 328, 122 So. 343; McDonald Co. v. Stern Marx, 142 Ala. 506, 38 So. 643.
The bill does not show on its face that complainant was fully informed of its liability to the particular or several claimants, and therefore was not subject to that ground of demurrer. Modern Order of Praetorians v. Merriman, 204 Ala. 197, 85 So. 473. The debt or amount was claimed by the several parties respondent; their claims were dependent or derived from the common source — the construction contract. Complainant has no claim or interest in the subject-matter, the balance due by the owner to the contractor, and stands indifferently between the claimants, and occupies the position merely as stakeholder when he brings into court the sum indicated. Baldwin v. Constantine, 214 Ala. 446, 108 So. 345.
The decree of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.