Heald & Co. v. Rhind

McSherry, C. J., delivered the opinion of the Court. Having decided in the preceding case that Colden Rhind is not entitled in his own right to any portion of the shares that have been called lapsed or abandoned; and having further held that he is only entitled to such part thereof as may be covered by the assignments which he holds from some members of the syndicate; the question now to be disposed of is whether Heald and Company may participate in the fund in Court or whether the portion claimed by them forms one of the lapsed or abandoned shares. Pleald and Company were members of the syndicate. They were made parties to the bill of interpleader, but failed to answer until after the decree directing the parties to interplead had been passed.

That decree was signed on June the thirteenth, 1894, and the answer of Heald and Company was filed on the fourth of October following. By paragraph E, section 2 of the decree of interpleader, it was adjudged that Heald and Company and several others having failed to answer were entitled to no interest in the fund. The final decree which declared that Rhind was the owner of the entire fund was passed on May the fifth, 1896. Heald and Company did not appeal.

It is now insisted by Thom and Redwood and by Alexander Brown and Sons that Heald and Company having been adjudged by the decree of interpleader to have no interest and having taken no appeal from the final decree awarding the fund to Rhind, are precluded from now asserting any claim to the fund ; and that the share of that fund which would have gone to the firm of Heald and Company had they made their claim in due season forms ³²² the fifth-lapsed or abandoned share—the other four shares being those of the Bank of Charleston, R. M. Marshall .and Brother, Parsons, Leach and Company and The Baltimore Trust and Guarantee Company. The Court below decreed by section 3 of paragraph V, that Heald and Company were not entitled to participate in the fund and neither Thom and Redwood nor Alexander Brown and Sons were entitled to a dividend of the share which Heald and Company claimed. By the same paragraph and section the decree awarded to Rhind the amount demanded by Heald and Company. It is perfectly clear that the decree of interpleader was not a final decree.

Barth v. Rosenfield, 36 Md. 604 ; Owings v. Rhodes, 65 Md. Md. 408; Miller’s Equity, sec. 724. As stated by Mr. Miller in his admirable and very reliable work on Equity just published: “A decree passed upon the filing of a bill of interpleader * * * * is interlocutory, settling the rights of no party, and is at all times prior to a final decree subject to revision and alteration. * * *” Sec. 724. And in the note to the same section it is said, on the authority of Owings v. Rhodes, supra, “that from the nature of the procedure there must be a preliminary decree so that the codefendants may have an opportunity to properly present their conflicting claims ; the Court could not undertake to determine the validity of the claims in controversy before all evidence in support of those claims had been adduced,” This interlocutory decree declaring that Heald and Company had no interest in the fund, merely because they had failed to answer, did not preclude them from asserting a claim at any time before a final decree was passed. After the interlocutory decree was signed, but long before the case reached a final decree, Heald and Company went into the case -without apparent objection, filed an answer and set up a claim to an interest in the fund.

The final decree of May the fifth, 1896, adjudged that Rhind alone owned the whole fund in dispute; but that decree having been declared on appeal to be ³²³ radically erroneous was wholly and