# H. C. Schrader Co. v. A. Z. Bailey Groc. Co.

> Alabama Court of Appeals · January 30, 1917 · 15 Ala. App. 647

URL: https://www.frixlaw.com/law-library/cases/3220932

## Case

- **Full name:** H. C. Schrader Co. v. A. Z. Bailey Groc. Co. Claim Suit.
- **Court:** Alabama Court of Appeals
- **Decided:** January 30, 1917
- **Citations:** 15 Ala. App. 647; 74 So. 749; 1917 Ala. App. LEXIS 75
- **Precedential status:** Published
- **Opinion:** Addendum by Brown
- **Judges:** Brown
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3220932

## Opinion text

ON REHEARING.
BROWN, P. J.
(7)
While the filing of the affidavit provided for in section 6050 of the Code is essential to the court’s jurisdiction to entertain or require interpleader, the filing of such affidavit is not conclusive of the right to require interpleader. In one of the cases cited in the original opinion the Supreme Court held: "Evidently objection may be made to the granting of the order of interpleader at the time the motion is acted on. When the affidavit is filed, if it shows, upon its face, that it is not a case for interpleader, the plaintiff may present to the court any reasons which he may desire to present, to show to the court that it is not a proper case for interpleader; and, if the court so holds, it should refuse then to grant the order, notifying the substituted defendant to come in and propound his claim; but, inasmuch as the statute does not require the defendant to set out the facts, on which he claims the right to interpleader, the plaintiff must have an opportunity to present the point that it is not a case for inter-pleader, when the facts are made known. Therefore this court properly held that the plaintiff could demur to the claim propounded by the substituted defendant” and in this way raise the question as to whether the case was one for
interpleader.
— Stew
art v. Sample,
168 Ala. 276 , 53 South. 182 ;
Coleman v. Chambers,
127 Ala. 615 , 29 South. 58 .
It would be an anomaly in judicial procedure to hold that the plaintiff may object to the interpleader, and in the same breath hold that the third party who is to be brought in and substituted for the defendant has no such right, and unless the plaintiff objects the right of the third party against the original defendant will be foreclosed. Such a holding would open a door to fraud and collusion through which the plaintiff and the original defendant could compel the innocent third party to litigate when and where they might determine, without right of objection or review ; and the doctrine that if the defendant who invokes inter-pleader has incurred an "independent liability to either of the
*654
claimants,” and does not “stand perfectly indifferent between them,” he canhot compel interpleader
(Stewart v. Sample, supra), would
be futile. Suppose the original defendant has incurred an independent liability to the third party suggested as claimant; can he defeat that independent liability by interpleader ? No. Yet, if the third party can be compelled to come in and litigate without the right to question the right of the original defendant to require interpleader, the judgment will conclude his right against the original defendant.
The case of
Frith & Co. v. Hollan,
133 Ala. 583 , 32 South. 494 , 91 Am. St. Rep. 54 , seems to have been a sale by description, without inspection, the goods being shipped at the purchaser’s request, and when the goods were delivered to the carrier at the initial point of shipment the title passed from the seller to the
purchaser.
— McCormick
v. Joseph,
77 Ala. 240 ;
Robinson v. Pogue,
86 Ala. 261 , 5 South. 685 . And by receiving the goods when they reached their destination the purchaser deprived the seller of no right. In the case in hand the title to the oranges did not pass until after they were inspected and accepted by the Bailey Grocery Company, and, as we have said, the Bailey Grocery Company was under no obligation to accept them; yet it could not accept the oranges after inspection, in the absence of a stipulation in the contract for such contingency, and deprive the shipper of its property in them without liability for the contract price. The application is overruled.
Application overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3220932. Public record. Not legal advice.