West's Code of Georgia Annotated Currentness Title 23. Equity Chapter 3

Ga. Code Ann., § 23-3-90 Page 1

West's Code of Georgia Annotated Currentness Title 23. Equity Chapter 3. Equitable Remedies and Proceedings Generally Article 4. Equitable Interpleader § 23-3-90. Grounds for grant of interpleader

(a) Whenever a person is possessed of property or funds or owes a debt or duty, to which more than one person lays claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead.

(b) If the person bringing the action has to make or incur any expenses in so doing, including attorney's fees, the amount so incurred shall be taxed in the bill of costs, under the approval of the court, the court in its discretion determining the amount of the attorney's fees, and shall be paid by the parties cast in the action as other costs are paid.

CREDIT(S)

Laws 1952, p. 90, § 1.

Formerly Code 1863, § 3156; Code 1868, § 3168; Code 1873, § 3235; Code 1882, § 3235; Civil Code 1895, § 4896; Civil Code 1910, § 5471; Code 1933, § 37-1503.

CROSS REFERENCES

Civil procedure, interpleader, see § 9-11-22.

LIBRARY REFERENCES

Interpleader13, 35. Westlaw Key Number Searches: 222k13; 222k35. C.J.S. Interpleader §§ 12, 53 to 57.

RESEARCH REFERENCES

Forms

2 Brown Georgia Pleading, Prac. & Legal Forms Anno. § 9-11-21, Misjoinder and Nonjoinder of Parties (Text of Code Section).

2 Brown Georgia Pleading, Prac. & Legal Forms Anno. § 9-11-22, Interpleader (Text of Code Section).

6 Brown Georgia Pleading, Prac. & Legal Forms Anno. § 23-3-90 Form 1, Petition for Interpleader.

6 Brown Georgia Pleading, Prac. & Legal Forms Anno. § 23-3-90 Form 3, Order Directing Interpleader.

Georgia Law of Damages with Forms § 9:5, Attorney's Fees--Amount.

Georgia Law of Damages with Forms § 9:7, Statutory Provisions--Civil Practice Act.

Handbook on Georgia Practice with Forms § 7-8, Interpleader.

Handbook on Georgia Practice with Forms § 24-24, Equitable Interpleader.

Handbook on Georgia Practice with Forms § 24-25, Equitable Interpleader--Form: Complaint for Equitable In- terpleader.

Treatises and Practice Aids

Davis and Shulman's Georgia Practice and Procedure § 29:8, Definition and Nature of Equitable Interpleader.

Davis and Shulman's Georgia Practice and Procedure § 4:16, Interpleader.

Davis and Shulman's Georgia Practice and Procedure § 4:17, Intervention.

Georgia Procedure Considerations in Initiating Suit § 16:5, Relation to Joinder and Equity Interpleader.

Georgia Procedure Special Remedies and Proceedings § 1:7, Equitable Interpleader.

Georgia Real Estate Finance and Foreclosure Law § 8-7, Distribution of Sale Proceeds.

NOTES OF DECISIONS

In general 1 Affidavit negating collusion 10 Attorney fees 26 Construction and application 3 Costs 25

Counterclaims or cross-bills of interpleader 9 Discovery 18 Disinterest and impartiality, persons entitled to compel interpleaders 6 Doubtful or dangerous to act, persons entitled to compel interpleaders 7 Existence of adequate remedy or defense at law 8 Injunctions 11 Jurisdiction 19 Law governing 4 Necessity of hearing 15 Parties 20 Persons entitled to compel interpleaders 5-7 Persons entitled to compel interpleaders - In general 5 Persons entitled to compel interpleaders - Disinterest and impartiality 6 Persons entitled to compel interpleaders - Doubtful or dangerous to act 7 Purpose 2 Questions for court 22 Questions for jury 23 Relief awarded 16 Review 27 Service 17 Sufficiency of evidence 24 Sufficiency of pleadings 21 Timing of bill of interpleader 13 Unliquidated claims 12 Verification of bill of interpleader 14

1. In general

An interpleader suit consists of two phases, in the first of which it must be determined whether the bill will lie, and final decree should be entered so far as the prayers of the petitioner are concerned, and in the second of which defendants are required to interplead and litigate matters in dispute between themselves. Smith v. Folsom, 1940, 190 Ga. 460, 9 S.E.2d 824; Smith v. Horton, 1916, 144 Ga. 496, 87 S.E. 655.

The claimant in an interpleader case is in a position similar to that of plaintiffs in other possessory actions, where recovery must be had on strength of their own title rather than on weakness of their adversary's title. Whatley v. Alto Corp., 1955, 211 Ga. 718, 88 S.E.2d 398; Conway v. Caswell, 1904, 121 Ga. 254, 48 S.E. 956, 2 Am.Ann.Cas. 269.

Interpleader is of equitable nature. Sanders v. Carney, 1968, 117 Ga.App. 645, 161 S.E.2d 380, transferred to 224 Ga. 429, 162 S.E.2d 351, transferred to 118 Ga.App. 576, 164 S.E.2d 856; National Auto. Ins. Co. v. Vaughn, 1958, 213 Ga. 806, 102 S.E.2d 1.

The “adverse claims” that authorize interpleader are those which might be brought against the stakeholder by the various claimants to the fund which he holds; thus, where the “adverse claims” on a fund have in fact been inter-

pleaded, it is proper to dismiss the holder of the disputed fund as a party to the action, assuming that no further relief against the holder is being sought or necessary. O.C.G.A. § 9-11-22. Glisson v. Freeman, 2000, 243 Ga.App. 92, 532 S.E.2d 442; Thompson v. Bank of South, 1984, 172 Ga.App. 579, 323 S.E.2d 877.

Statutory interpleader does not require a pre-existing legal action. Penland v. Corlew, 2001, 248 Ga.App. 564, 547 S.E.2d 306. Interpleader 15

The complainant in a bill of interpleader merely stirs up a war and then leaves real belligerents to fight it out, he retiring from the scene to repose in dignified ease. Whatley v. Alto Corp., 1955, 211 Ga. 718, 88 S.E.2d 398. In- terpleader 1

“Petition in nature of petition for interpleader” lies to ascertain and establish petitioner's rights in property to which there are conflicting claims between third persons, but such interest must be equitable, vested, and sub- sisting. Campbell v. Trust Co. of Georgia, 1943, 197 Ga. 37, 28 S.E.2d 471, 152 A.L.R. 1111. Interpleader 8(1)

Where there is a bill of interpleader, and the defendants answered, admitting on both sides the fact of the dispute, and the absence of any interest in the stakeholder, the Court will, if possible, take such action as will protect the stakeholder, without delay, leaving to the parties disputing, to litigate between themselves as to their rights. Perkins v. Trippe, 1869, 40 Ga. 225. Interpleader 11

2. Purpose

Purpose of provision of Civil Practice Act relating to interpleader is to bring in additional parties in action at law where there is a possibility of double liability to party plaintiff or defendant. Code, § 81A-122(a). Midland Nat. Life Ins. Co. v. Emerson, 1970, 121 Ga.App. 427, 174 S.E.2d 211. Interpleader 1

3. Construction and application

Interpleader provisions should be liberally construed in order that their utilitarian purposes may be best effectuated. Penland v. Corlew, 2001, 547 S.E.2d 306, 248 Ga.App. 564; C & S Land, Transp. & Development Corp. v. Grubbs, 1977, 141 Ga.App. 393, 233 S.E.2d 486; Algernon Blair, Inc. v. Trust Co. of Georgia Bank of DeKalb, 1968, 224 Ga. 118, 160 S.E.2d 395.

Interpleader provisions are remedial in nature and therefore should be liberally construed in order that their utilitarian purposes may be best effectuated. American General Life & Acc. Ins. Co. v. Vance, 2009, 2009 WL 1176383. Interpleader 1

4. Law governing

Where petition was filed prior to effective date of interpleader provision of Civil Practice Act, case was properly treated as governed by Civil Practice Act in absence of finding that its application in the particular circumstances would not be feasible or would work injustice. Code, §§ 81A-122, 81A-186. Algernon Blair, Inc. v.

Trust Co. of Georgia Bank of DeKalb, 1968, 224 Ga. 118, 160 S.E.2d 395. Interpleader 1.5

5. Persons entitled to compel interpleaders--In general

The right to statutory interpleader depends merely upon the stakeholder's good-faith fear of adverse claims, re- gardless of the merits of those claims or what the stakeholder bona fide believes the merits to be. Penland v. Corlew, 2001, 547 S.E.2d 306, 248 Ga.App. 564; Gilbert v. Montlick & Associates, P.C., 2001, 248 Ga.App. 535, 546 S.E.2d 895, certiorari denied ; Thompson v. Bank of South, 1984, 172 Ga.App. 579, 323 S.E.2d 877; Algernon Blair, Inc. v. Trust Co. of Georgia Bank of DeKalb, 1968, 224 Ga. 118, 160 S.E.2d 395.

A stakeholder is not entitled to protection by a court of equity to extent of being saved from all shadow of risk, and if he is in possession of all facts and there is no question of law reasonably debatable, he is not entitled to interpleader. Calhoun v. Lawrence, 1961, 217 Ga. 423, 122 S.E.2d 576; Lilley v. Nixon, 1958, 214 Ga. 548, 105 S.E.2d 716; Lowery v. Independent Life & Acc. Ins. Co., 1953, 209 Ga. 753, 76 S.E.2d 5; Citizens Bank of For- syth v. Middlebrooks, 1952, 209 Ga. 330, 72 S.E.2d 298.

To maintain petition for “interpleader”, there must be at least two adverse claims dependent on or derived from a common source and against which petitioner has no right in opposition and does not know whom he ought of right to pay, and he must occupy position of disinterested stakeholder. Campbell v. Trust Co. of Georgia, 1943, 197 Ga. 37, 28 S.E.2d 471, 152 A.L.R. 1111; Wight v. Ferrell, 1939, 188 Ga. 200, 3 S.E.2d 736.

Where two or more persons severally claim the same thing under different title or in separate interests from another person, who, not claiming any title or interest therein himself and not knowing to which of the claimants he ought of right to render the debt, is either molested by an action brought against him or fears that he may suf- fer injury from the conflicting claims of the parties, a proper case for interpleader exists. Adams v. Dixon, 1856, 19 Ga. 513, 65 Am.Dec. 608; Davis v. Davis, 1895, 96 Ga. 136, 21 S.E. 1002; Burton v. Black, 1861, 32 Ga. 53; Strange v. Bell, 1852, 11 Ga. 103.

Under Georgia law, interpleader action may be an owner's most viable remedy when faced with multiple lien claims by several subcontractors and materialmen. Mullins v. Noland Co., 1975, 406 F.Supp. 206. Interpleader 11

Insurer of insureds who were killed in automobile accident in which it was not clear which insured was driving, was not entitled to petition for interpleader on grounds that as result of insureds' representatives' conflicting claims insurer may have been subject to penalties and multiplicity of suits or actions; claim did not involve multiple claimants to same stake, insurer could not be liable for more than policy limits, and insurer faced no uncer- tainty, but rather had to defend lawsuit brought against its insured and pay up to its policy limits if judgment was rendered against her. O.C.G.A. §§ 9-11-22, 23-3-90(a). Southern General Ins. Co. v. Crews, 2002, 253 Ga.App. 765, 560 S.E.2d 331. Interpleader 11

An insurance company is entitled to petition of interpleader if it is in position in which it is liable to one of two or more persons, who claim from it same debt or duty; and, company claims no right in opposition to claimants

and does not know to whom it ought, of right, to render debt or duty. O.C.G.A. §§ 9-11-22, 23-3-90(a). Southern General Ins. Co. v. Crews, 2002, 253 Ga.App. 765, 560 S.E.2d 331. Interpleader 11

When a stakeholder finds himself in the possession of funds that are possibly subject to claims by others, an action in interpleader is appropriate. Penland v. Corlew, 2001, 248 Ga.App. 564, 547 S.E.2d 306. Interpleader 13

Under the interpleader statute, a stakeholder's offer to deposit disputed funds into the registry of the court in order to be discharged from potential litigation should not be denied merely because a claimant's case is weak or rests on tenuous grounds. O.C.G.A. § 9-11-22. Gilbert v. Montlick & Associates, P.C., 2001, 248 Ga.App. 535, 546 S.E.2d 895, certiorari denied. Interpleader 8(1)

Former employer had right to interplead in action for attorney fees sought by two law firms that represented former employee in action against employer, even though one law firm did not have legitimate claim to payment, and second law firm did not represent employee at time of award in underlying arbitration, in light of fact that right to interpleader merely depended upon law firm's good faith fear of adverse claims. O.C.G.A. §§ 5-6-34 (b), 9-11-22. Gilbert v. Montlick & Associates, P.C., 2001, 248 Ga.App. 535, 546 S.E.2d 895, certiorari denied. Interpleader 8(2)

Vendor was entitled to judgment on request for interpleader in action to obtain commission by real estate broker against vendor and real estate broker which consummated sale of vendor's property where vendor demonstrated that it was disinterested stakeholder which only desired to be relieved of determining which broker should be paid and to be shielded from vexatious litigation. Evans v. Cushing Properties, 1990, 197 Ga.App. 380, 398 S.E.2d 306. Interpleader 11

Real estate broker was not entitled to interpleader to protect it from liability for withholding purchaser's earnest money following recision of sale contract as contract provided for refund if sale was not consummated due to purchaser's default, willful or otherwise, all facts were known to broker, which was responsible for communica- tions between parties, and broker could have no reasonable doubt as to its safety in dispensing the funds in ac- cord with contract. Panfel v. Boyd, 1988, 187 Ga.App. 639, 371 S.E.2d 222. Interpleader 8(2)

It was permissible to use interpleader procedure so as to adjudicate all claims of parties involved in action originally brought by permanent administratrix against bank seeking damages for alleged mishandling of funds wherein bank sought to interplead temporary administratrix whom it had allowed to withdraw funds. Code, §§ 81A-101 et seq., 81A-122; Const.Art. 9, § 2, Pars. 1-6. Kelly v. Citizens & Southern Nat. Bank, 1981, 160 Ga.App. 405, 287 S.E.2d 343. Interpleader 4

In view of existence of claims to surplus fund remaining in hands of assignee of deed to secure debt following foreclosure sale and in view of evidence indicating that conveyance by grantor of deed to secure debt of his equity interest in property to his wife might have constituted fraudulent conveyance, assignee of deed to secure debt acted reasonably in refusing to pay surplus funds to grantor's wife and in filing interpleader action; disap- proving language in Holland v. Sterling, 214 Ga. 583, 105 S.E.2d 894. Code, §§ 37-1503 et seq., 37-1505,

81A-101 et seq., 81A-122, 81A-122(a, b). Stone v. Davis, 1978, 242 Ga. 17, 247 S.E.2d 756. Interpleader 11

Interpleader is not authorized in a case which fails to show that the claims, sought to be interpleaded, are against the petitioner, are against the same fund held by petitioner, and are adverse, that is, may expose the petitioner to double or multiple liability. Code, §§ 37-1503, 81A-122. Farris v. U. S., 1973, 230 Ga. 862, 199 S.E.2d 782. In- terpleader 6

Property owner may not defend against lien of laborer or materialman by showing that there are existing claims or liens of others in like circumstances, but he may force all such materialmen to interplead, placing himself in position of stakeholder to the fund. Scott v. Williams, 1965, 111 Ga.App. 735, 143 S.E.2d 16. Interpleader 3; Mechanics' Liens 253

Building owners who hired contractor to repair building for a specified amount could maintain interpleader against contractor, laborers and materialmen, and were entitled to injunction against lien foreclosure on payment of agreed amount into registry of court. Code, § 37-1503. Bryant v. Haygood, 1961, 216 Ga. 561, 118 S.E.2d 469. Interpleader 11

Savings and loan associations and bank, which were mere stakeholders making no claim whatever to funds deposited therein under repealed act pertaining to ordinaries' retirement fund and which were among defendants named in action brought by several ordinaries who had retired under the repealed act, were properly entitled to interplead members of board which administered fund under repealed act and retired ordinaries as debatable and intricate questions of law were involved and associations and bank were in position in which it was dangerous for them to act. Laws 1953, Nov.-Dec.Sess., p. 362 amended Laws 1955, p. 645, Laws 1956, p. 805; Code, §§ 16-439, 24-1701a to 24-1716a, 37-1503; Const. art. 6, § 14, par. 3. Gunby v. Harper, 1960, 114 S.E.2d 856, 216 Ga. 94. Interpleader 11

Where sales contract which sellers, purchaser and broker signed contained provisions respecting return of the escrow fund contrary to some of the provisions in a letter transmitting such fund to the bank which rendered its duty to the parties so uncertain that it could not, with safety or without danger of liability, comply with the demand of either party, bank was entitled to have the parties interplead and determine their respective claims to the escrow fund. Code, § 37-1503. Fulton Nat. Bank of Atlanta v. Block, 1960, 215 Ga. 602, 112 S.E.2d 616. Inter- pleader 11

Real doubt or danger alone authorizes one to file a petition for interpleader. Lilley v. Nixon, 1958, 214 Ga. 548, 105 S.E.2d 716. Interpleader 8(2)

In order to entitle petitioner to a petition for interpleader, adverse claims must be derived from a common source, and petitioner must show that he claims no right in opposition to claimants, or either of them. National Auto. Ins. Co. v. Vaughn, 1958, 213 Ga. 806, 102 S.E.2d 1. Interpleader 8(1)

Where sister of deceased depositor notified savings and loan association that depositor had made sister a gift

causa mortis of deposit book and savings account and thereafter brought suit against association to recover amount of deposit, and administrator of estate of deceased depositor notified association that no valid gift or transfer of deposit had been made to depositor's sister and that deposit constituted part of estate of deceased depositor and demanded payment to him, association was properly permitted to maintain bill of interpleader, and to have depositor's sister enjoined from maintaining suit against association. Code, §§ 16-349, 37-1503. Morris v. Fulton County Federal Savings & Loan Ass'n, 1955, 211 Ga. 900, 89 S.E.2d 489. Interpleader 11; Interplead- er 32

Where no one questioned right of holder of security deed to property covered by fire insurance to recover his loss out of proceeds of fire policy, his claim could not be basis of bill of interpleader to determine right to proceeds. Almand v. Reese, 1952, 209 Ga. 138, 71 S.E.2d 223. Interpleader 8(2)

Before a claim will be held of such character as to render it doubtful or dangerous for holder to act, so as to furnish basis for interpleader, there must be a close question of law or fact. Code, § 37-1503. Almand v. Reese, 1952, 209 Ga. 138, 71 S.E.2d 223. Interpleader 8(2)

Where fire insurer knew that deceased insured owed debts and that administration of her estate would be necessary, there was no reasonable doubt of right of administrator to proceeds of insurance, and insurer was not entitled to maintain bill of interpleader because of claims of insured's heir at law or his trustee in bankruptcy. Code, § 37-1503. Almand v. Reese, 1952, 209 Ga. 138, 71 S.E.2d 223. Interpleader 8(2)

Under interpleader statute, a bank which has rented a deposit box to which widow and administrator of deceased husband's estate claim right of entry need not decide at its peril either close questions of fact or nice questions of law, but when bank is in possession of all the facts and the questions of law are not intricate or debatable, petition for interpleader will be denied. Code, § 37-1503. Mandeville v. First Nat. Bank of Atlanta, 1950, 206 Ga. 426, 57 S.E.2d 553. Interpleader 8(2)

Under interpleader statute and under safety deposit box agreement giving either husband or wife right of entry, either wife or administrator of deceased husband's estate could enter the box, and bank was not confronted with intricate or debatable questions of law such as would entitle bank to bring interpleader. Code, § 37-1503. Mandeville v. First Nat. Bank of Atlanta, 1950, 206 Ga. 426, 57 S.E.2d 553. Interpleader 8(2)

A compensated trustee of trust created by voluntary agreement could not maintain suit to compel interpleader between beneficiary of trust created by settlor's predeceased husband, which trust had been terminated by settlor under provisions of the prior trust, and executrix of settlor's deceased son who did not claim under, but antagon- istically to, trust agreement, under will of settlor's predeceased husband. Campbell v. Trust Co. of Georgia, 1943, 197 Ga. 37, 28 S.E.2d 471, 152 A.L.R. 1111. Interpleader 11

A compensated trustee was not entitled to have direction of court under instrument creating him trustee by in- voking construction of will of third person in determining which of two claimants was entitled to property held in trust, where only one of claimants asserted claim under the trust and other claimant asserted claim under will

of third person, but trustee had duty of defending title to property held under agreement. Campbell v. Trust Co. of Georgia, 1943, 197 Ga. 37, 28 S.E.2d 471, 152 A.L.R. 1111. Interpleader 11

A compensated trustee did not have such interest in property held by it under trust indenture to which another claimed paramount title under will of third person to that of donor of trust, as permitted trustee to maintain petition in nature of petition for interpleader. Campbell v. Trust Co. of Georgia, 1943, 197 Ga. 37, 28 S.E.2d 471, 152 A.L.R. 1111. Interpleader 13

Under statute providing that a person possessing funds to which more than one person shall lay claim of such a character as to render it dangerous for the holder to act may apply to equity to compel the claimants to interplead, such a petition will not lie if the holder knows all the facts and the questions of law under repeated decisions are not intricate or debatable, but it is not incumbent upon the holder to decide at his peril either close questions of fact or nice questions of law and in such case he may require the parties in interest to set up their claims for determination. Code, § 37-1503. Cannon v. Williams, 1942, 194 Ga. 808, 22 S.E.2d 838. Interpleader 8(2)

Bank, which held bequest in trust for legatee who was entitled thereto in event he claimed the bequest in 14 years and who in fact claimed the bequest within such period, could not require temporary administrator of legatee's estate, and alternative legatee and others to interplead, since no reasonable doubt of temporary administrator's right to the fund existed. Code 1933, §§ 37-1503, 85-903, 108-112, 113-1207, 113-1221, 113-1511. Las- siter v. Bank of Dawson, 1940, 191 Ga. 208, 11 S.E.2d 910. Interpleader 8(2)

A bailee could not maintain interpleader proceeding to require bailor and another to determine conflicting claims to stock certificate in hands of bailee on ground that bailee was entitled to such relief in order to prevent a multiplicity of suits. Wight v. Ferrell, 1939, 188 Ga. 200, 3 S.E.2d 736. Interpleader 6

Security deed holder held not entitled to maintain bill for interpleader to require grantee to set up facts with respect to tax executions purchased by holder of prior security deed against grantee's properties so that pro rata amount chargeable against separate properties of grantee could be determined. Code 1933, § 37-1503. Millen Hotel Co. v. Chastaine, 1936, 183 Ga. 172, 188 S.E. 4. Interpleader 13

“Doubt” authorizing person possessing property or funds or owing debt or duty to which more than one person lays claim to maintain interpleader must be reasonable and may not be created in order to excuse performance of obligation. Code 1933, § 37-1503. Daniel v. Citizens & Southern Nat. Bank, 1936, 182 Ga. 384, 185 S.E. 696. Interpleader 8(2)

State depository having state funds on deposit when state treasurer was suspended by Governor and another treasurer appointed held not entitled to maintain interpleader to determine to whom state money should be paid, since depository could discharge obligation to state by accounting for funds to new appointee. Code 1933, §§ 37-1503, 40-206, 40-207; Const. art. 5, § 1, par. 18. Daniel v. Citizens & Southern Nat. Bank, 1936, 182 Ga. 384, 185 S.E. 696. Interpleader 8(2)

Third party tort-feasor against whom employee recovered judgment for injuries held entitled to require employee, employee's attorneys, and employer, to interplead, for purpose of determining who was entitled to payment of judgment, notwithstanding employee's transfer of judgment to his attorneys, where employer had right of sub- rogation for compensation payments and medical expenses. Code 1933, §§ 37-1503, 114-403, 114-501. Johnson v. Harbison-Walker Mining Co., 1936, 181 Ga. 630, 183 S.E. 791. Interpleader 11

Plaintiff could not interplead claimants to brokerage commission, where claimants' answers and supporting evidence showed agreement with, and possible liability to, each claimant. Gardner v. Haas, Howell & Dodd, 1934, 178 Ga. 685, 173 S.E. 863. Interpleader 10

Carrier, if unable to determine title to property demanded while in transit, should file interpleader rather than determine for itself conflicting claims. Civ.Code 1910, § 2739. Southern Ry. Co. v. Miller, 1929, 40 Ga.App. 448, 150 S.E. 100. Interpleader 11

Plaintiff executing note indorsed to bank could compel bank and payee both claiming indebtedness to interplead and have court determine to whom plaintiff owed claim. Civ.Code 1910, § 5471. Fourth Nat. Bank v. Lattimore, 1929, 168 Ga. 547, 148 S.E. 396. Interpleader 11

Where one sues insurer for amount of policy and another sues for amount of policy and damages, this does not present case for strict bill of interpleader by insurer. Andrews v. Travelers' Ins. Co. of Hartford, Conn., 1916, 145 Ga. 472, 89 S.E. 522. Interpleader 7

Where two persons claim a debt, and the debtor, in a petition against them for strict interpleader, pursuant to Civ.Code 1910, § 5471, denies that he is indebted to one of them, an order for such interpleader will not be granted. Manufacturers' Finance Co. v. W. L. Jones Co., 1914, 141 Ga. 619, 81 S.E. 1033. Interpleader 26

Where the question is not to which of several claimants a debt is owing, but whether the debtor is liable to each of the two holders of notes, Civ.Code 1910, § 5471, does not authorize a proceeding for interpleader. Manufac- turers' Finance Co. v. W. L. Jones Co., 1914, 141 Ga. 619, 81 S.E. 1033. Interpleader 10

Under Civ.Code 1910, § 5471, a person having in his possession property or funds claimed by more than one person may compel the claimants to interplead, where the claims are of such a character as to render it doubtful how he should act. Watters v. Lanford, 1913, 140 Ga. 249, 78 S.E. 847. Interpleader 8(2)

Under Civ.Code 1910, § 5471, authorizing claimants to money or property in the hands of another to interplead, a tenant, declaring his inability to determine who was legally entitled to the rent, and offering to deliver the rent into court, and praying that the contesting claimants interplead, was entitled to an order for an interpleader and an interlocutory injunction. Ball v. Madden, 1913, 139 Ga. 727, 78 S.E. 26. Interpleader 11

A plaintiff, on a petition against two defendants containing an alternative statement of facts, wherein plaintiff al-

leges that if one statement be true one defendant is indebted to him, and if the other statement is true the other defendant is indebted to him, and praying that defendants be required to interplead, so as to determine which one is liable to him, and, upon the liability being fixed, that plaintiff have judgment against such defendant, cannot require such defendants to interplead and settle their respective rights, to determine which one is liable to plaintiff; Civ.Code 1910, § 5471, providing that whenever one is possessed of property, or owes a debt or duty, to which more than one person lays claim, and the claims are such as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead. W.D. Price & Co. v. Virginia-Caro- lina Chemical Co., 1911, 136 Ga. 175, 71 S.E. 4. Interpleader 3

One indebted on a note representing the balance of the unpaid purchase money for land in Georgia, to which he held bond for title, can bring a proceeding in the nature of a bill of interpleader against two foreign administrators with the will annexed of the deceased payee, where each of the administrators claims that he is the rightfully appointed administrator and entitled to collect the money due on the notes, and petitioner cannot, without reasonable apprehension, determine which of the two claimants is rightfully entitled to the fund, upon offering to pay the fund in controversy into the registry of the court, that it may be awarded to the successful one of the parties required to interplead. McKinney v. Daniels, 1910, 135 Ga. 157, 68 S.E. 1095. Interpleader 11

Where several persons claim from a common source conflicting interests in a fund held by a stakeholder which is insufficient to pay all, and there is doubt as to the person to whom the money should be paid, the stakeholder may compel all parties to interplead and enjoin the prosecution of separate suits. Western & A. Ry. Co. v. Union Inv. Co., 1907, 128 Ga. 74, 57 S.E. 100. Interpleader 8(2)

Where, pending a suit by creditors of the holder of a certificate of deposit issued by a firm of bankers, another suit was brought by the present holder of the certificate, who took it from the former holder after the first suit was brought, the bank may have an order of interpleader. James v. Sams, 1892, 90 Ga. 404, 17 S.E. 962. Inter- pleader 11

When a warehouseman received cotton for storage and sale, and afterwards sold it, as he alleges, in pursuance of the instructions of his principal bailor, to a purchaser who subsequently stored the cotton in his warehouse, and claims the title to the same; and the original bailor of the cotton also claims it on the ground that the warehouseman had no authority to sell it: Held, that the facts of the case did not authorize the warehouseman to file a bill of interpleader, enjoining the parties, claiming the cotton, from suing him and to compel them to litigate with each other as to the title of the cotton which he had sold to one of them as such warehouseman. Tyus v. Rust, 1868, 37 Ga. 574, 95 Am.Dec. 365. Interpleader 11

6. ---- Disinterest and impartiality, persons entitled to compel interpleaders

Necessary ingredient of equitable interpleader is that stakeholder be disinterested. Midland Nat. Life Ins. Co. v. Emerson, 1970, 121 Ga.App. 427, 174 S.E.2d 211; Calhoun v. Lawrence, 1961, 217 Ga. 423, 122 S.E.2d 576; Holland v. Sterling, 1958, 214 Ga. 583, 105 S.E.2d 894; National Auto. Ins. Co. v. Vaughn, 1958, 213 Ga. 806, 102 S.E.2d 1; Wight v. Ferrell, 1939, 188 Ga. 200, 3 S.E.2d 736; Manufacturers' Finance Co. v. W. L. Jones Co., 1914, 141 Ga. 619, 81 S.E. 1033; Adams v. Dixon, 1856, 19 Ga. 513, 65 Am.Dec. 608.

In action involving formerly married couple's competing claims of ownership in a life insurance policy, former husband's counterclaim against insurer, seeking either declaration of ownership in policy or reimbursement of premiums paid, did not by itself make insurer an interested stakeholder as to preclude its discharge from dispute through interpleader action; insurer demonstrated that it was a disinterested stakeholder, which only desired to be relieved from determining whether former wife or former husband was the legal owner of the life insurance policy it issued and to be shielded from vexatious litigation arising from the dispute. American General Life & Acc. Ins. Co. v. Vance, 2009, 297 Ga.App. 677, 678 S.E.2d 135. Interpleader 21

The holder of the contested property need not decide at his peril either close questions of fact or of law to entitle him to have the parties at interest set up their claims for determination; thus, an insurer is entitled to a petition of interpleader if it is in a position in which it is liable to one of two or more persons, who claim from it the same debt or duty, and the company claims no right in opposition to the claimants and does not know to whom it ought, of right, to render the debt or duty. American General Life & Acc. Ins. Co. v. Vance, 2009, 297 Ga.App. 677, 678 S.E.2d 135. Interpleader 8(2); Interpleader 11

Defendant insurance company which denied liability to plaintiff supervisor as well as to discharged agents for commissions was not disinterested stakeholder and could not join discharged agent who was resident of county other than county wherein suit was brought on equitable interpleader theory. Const. art. 6, § 14, par. 3; Code, §§ 37-1503, 81A-122(a). Midland Nat. Life Ins. Co. v. Emerson, 1970, 121 Ga.App. 427, 174 S.E.2d 211. Inter- pleader 10

As petitioner for interpleader may assert no rights in opposition to claimants of fund, petitioner could not maintain interpleader proceeding for adjudication of various parties' rights in overplus at foreclosure where petitioner sought to charge grantor of loan deed under which foreclosure sale was had, as one of the parties, with attorney's fees but made no allegations of any compliance with statute disallowing such fees unless debtor fail to pay debt on or before return day of court to which suit is brought. Code, § 20-506. Holland v. Sterling, 1958, 214 Ga. 583, 105 S.E.2d 894. Interpleader 10

Where a double liability was possible for brokers' commission against owner of real estate, the owner was not in that disinterested attitude as to conflicting claimants which was essential to a bill of interpleader or bill in the nature of interpleader. Lilley v. Nixon, 1958, 214 Ga. 548, 105 S.E.2d 716. Interpleader 10

Fire insurer was not entitled to maintain bill of interpleader to determine right to insurance proceeds where insurer had made a settlement with one of claimants, since insurer was not thereafter a disinterested stakeholder. Code, § 37-1503. Almand v. Reese, 1952, 209 Ga. 138, 71 S.E.2d 223. Interpleader 10

Trustee has such interest in property held by it under trust indenture to which another claims paramount title under will of third person to that of donor of trust, as precludes trustee to have claimant under will interplead with trustee. Campbell v. Trust Co. of Georgia, 1943, 197 Ga. 37, 28 S.E.2d 471, 152 A.L.R. 1111. Interpleader 10

An owner of property who had in his possession the balance due under contract for erection of house could

maintain interpleader to compel contractor's trustee in bankruptcy and materialmen claiming under asserted equitable assignments from contractor to litigate their rights between themselves, in absence of showing that owner had incurred any independent liability to materialmen or was a wrongdoer. Code 1933, § 37-1503. Smith v. Folsom, 1940, 190 Ga. 460, 9 S.E.2d 824. Interpleader 10

A bailee of stock certificate could not maintain interpleader suit to compel bailor and another to set up their respective claims to stock certificate since there was an independent personal liability of bailee to his bailor with respect to subject of bailment. Wight v. Ferrell, 1939, 188 Ga. 200, 3 S.E.2d 736. Interpleader 10

Ordinarily, a person who does not occupy the position of disinterested stakeholder cannot maintain an equitable proceeding to compel other claimants to interplead concerning the fund or property, but it is often allowable for person so situated to file a petition in the nature of a bill of interpleader, but only wherein he seeks affirmative relief independently of the fact of the conflicting claims of two or more defendants. Wight v. Ferrell, 1939, 188 Ga. 200, 3 S.E.2d 736. Interpleader 10

A petition to require bailor and another to interplead and set up respective claims to certificate of stock in hands of bailee where no affirmative relief independent of the conflicting claims of bailor and another was sought could not be maintained on ground that it was a petition in the nature of a bill of interpleader and not a strict bill of “interpleader.” Wight v. Ferrell, 1939, 188 Ga. 200, 3 S.E.2d 736. Interpleader 10

Executor's petition seeking determination of claims to devised property held not sustainable as bill of strict interpleader, since executor was not disinterested stakeholder. Civ.Code 1910, § 5471. Phillips v. Kelly, 1932, 176 Ga. 111, 167 S.E. 281. Interpleader 10

Where plaintiff, the owner of certain land, seeks to interplead defendants claiming commissions for the sale of the land, and an answer of one defendant alleged that plaintiff had agreed to pay the commission subject to an agreement with one of the members of defendants' firm, and there was a dispute with plaintiff as to the terms of the agreement, and as to a custom in the neighborhood as to commissions, where property was listed with more than one agent, petitioner was no longer a disinterested stakeholder, as shown by his petition, and unauthorized to enforce his demand for interpleader. Little & Green v. Davis, 1913, 140 Ga. 212, 78 S.E. 842. Interpleader 10

7. ---- Doubtful or dangerous to act, persons entitled to compel interpleaders

The statute, permitting an interpleader suit if one is possessed of property or funds to which more than one person lays claim of such character as to render it dangerous for the holder to act, requires that the conflicting claims be of such character as to justify a reasonable doubt or reasonable apprehension of danger. Code 1933, § 37-1503. Lassiter v. Bank of Dawson, 1940, 191 Ga. 208, 11 S.E.2d 910; Reed v. Metropolitan Life Ins. Co., 1950, 206 Ga. 604, 58 S.E.2d 183; Knight v. Jackson, 1923, 156 Ga. 165, 118 S.E. 661.

A petition for interpleader, by a holder of funds or property, will lie when there are two or more conflicting claims thereto of such character as to render it doubtful or dangerous for holder to act, under close disputed questions of fact or debatable questions of law which have not been adjudicated by court. Code, § 37-1503.

Gunby v. Harper, 1960, 114 S.E.2d 856, 216 Ga. 94. Interpleader 8(2)

In action on two accidental death insurance policies by insured's mother, defendant insurance company's interpleader petition, not challenged by demurrer or otherwise, showed that plaintiffs and insured's widow's conflicting claims to proceeds of policies as alleged legal beneficiaries thereof were of such character as to render it doubtful or dangerous for company to pay either, so that judgment permitting it to pay amount due into court's registry and then be discharged from further liability was not erroneous. Code, § 37-1503. Sanders v. Progress- ive Life Ins. Co., 1956, 212 Ga. 674, 94 S.E.2d 871. Interpleader 11

Where administratrix admits owing money on notes and there are two claims of legal title to notes of such character as to render it doubtful or dangerous to pay money to either claimant, she may, by equitable petition, require them to interplead. Millsap v. Waco Mercantile Co., 1916, 88 S.E. 673, 145 Ga. 95. Interpleader 8(2)

Under Civ.Code 1910, § 5471, an equitable proceeding lies where a person is possessed of funds, or owes a debt or duty to which more than one person lays claim, and the claims are of such a character as to render it doubtful or dangerous for him to act. Manufacturers' Finance Co. v. W. L. Jones Co., 1914, 141 Ga. 619, 81 S.E. 1033. Interpleader 1.5

A warehouseman who issued for cotton a receipt providing for redelivery “to this receipt only” could not maintain a petition of interpleader against different claimants of the cotton, under Code, § 3235, allowing such peti- tions, where the conflicting claims of defendants are of such a character as to render it doubtful or dangerous for plaintiff to act. National Bank of Augusta v. Augusta Cotton Compress Co., 1896, 99 Ga. 286, 25 S.E. 686. In- terpleader 8(2)

8. Existence of adequate remedy or defense at law

Claims against fire insurer by garnishing creditors did not authorize fire insurer, as garnishee, to maintain a bill of interpleader, since insurer had an adequate defense at law by setting out in answer facts with respect to possession of fund in its possession. Code, § 37-1503. Almand v. Reese, 1952, 209 Ga. 138, 71 S.E.2d 223. Inter- pleader 2

9. Counterclaims or cross-bills of interpleader

Assuming counterclaim was for equitable interpleader, issues raised by counterclaim were not shared by complaint, so that grant of relief on counterclaim was not inconsistent with denial of relief requested in complaint on theory that, when superior court granted interpleader, it assumed equitable jurisdiction and could not thereafter relegate issues raised in complaint to court with no equitable powers. O.C.G.A. § 23-3-90. Taylor v. Mosley, 1984, 252 Ga. 325, 314 S.E.2d 184. Interpleader 24

Sufficiency of insurer's counterclaim for interpleader did not turn on whether there was any merit in claims asserted against it. Code, § 81A-122(a). Insurance Co. of North America v. Citizens Bank of Gainesville, 1969, 225 Ga. 347, 168 S.E.2d 578. Interpleader 24

Fire insurer's counterclaim to implead loss payee, insured, and a second fire insurer which had issued to insurer's former wife a policy on same property, alleging, inter alia, that it was exposed to multiple liability in excess of face amount of its policy of insurance and was faced with a multiplicity of suits, stated a claim for interpleader. Code, §§ 81A-122(a), 81A-321. Insurance Co. of North America v. Citizens Bank of Gainesville, 1969, 225 Ga. 347, 168 S.E.2d 578. Interpleader 24

Where fire insurer sought to implead loss payee, insured, and a second fire insurer which had issued to insured's former wife a policy on same property, alleged facts that insurer failed to fulfill its policy obligations to loss payee and that insurer was served with notice of voucher into litigation between insured's former wife and second insurer and had opportunity to determine its liability there were not grounds for denying interpleader. Code, §§ 81A-122(a), 81A-321. Insurance Co. of North America v. Citizens Bank of Gainesville, 1969, 225 Ga. 347, 168 S.E.2d 578. Interpleader 24

Where interpleader will not lie, cross-petition by one defendant against another in the interpleader will not be entertained to try issue between such defendants. Code 1933, § 37-1503. Daniel v. Citizens & Southern Nat. Bank, 1936, 182 Ga. 384, 185 S.E. 696. Interpleader 24

10. Affidavit negating collusion

Failure to object to interpleader petition and filing of answer impliedly waived affidavit as to no collusion required by statute in interpleader complaint. Code, § 37-1504. White v. Georgia Farm Bureau Mut. Ins. Co., 1975, 234 Ga. 186, 215 S.E.2d 240. Interpleader 25

Under Civ.Code 1910, §§ 5471, 5472, where petition in nature of bill for interpleader does not show that petitioner is not in collusion with either party, but verifying affidavit makes such showing, petition is not demurrable. Andrews v. Travelers' Ins. Co. of Hartford, Conn., 1916, 145 Ga. 472, 89 S.E. 522. Interpleader 25

As against a special demurrer, a sworn allegation or an affidavit of noncollusion by the person seeking relief is indispensable to a petition for interpleader. Davis v. Davis, 1895, 96 Ga. 136, 21 S.E. 1002. Interpleader 25

When a bill of interpleader is filed, there must be an affidavit of the complainant that there is no collusion between him and any of the parties. Tyus v. Rust, 1868, 37 Ga. 574, 95 Am.Dec. 365. Interpleader 25

11. Injunctions

Under Code, § 3234, providing that when one owes a debt to which more than one person lays claim, and the claims are of such a character as to render it dangerous for the debtor to act, the debtor may apply to equity to compel the claimants to interplead where, pending the adjustment of a claim against a city, the claimant notified the city that one who previously represented him as attorney was no longer in his employ, and, on the allowance of the claim, the attorney notified the city that he claimed a lien on the same for services, and that the claimant was insolvent, the city was entitled to an injunction restraining the prosecution of a suit against it by the claimant on the claim, and to a decree compelling the claimant and the attorney to interplead. City of Atlanta v.

McDaniel, 1895, 96 Ga. 190, 22 S.E. 896. Interpleader 22

Where, pending a suit by creditors of the holder of a certificate of deposit issued by a firm of bankers, another suit is brought against them by a present holder of the certificate, who took it from the former holder after the first suit was brought and a receiver appointed therein, the superior court of the county in which both suits are pending has jurisdiction to enjoin the plaintiff in the second suit, notwithstanding he is a nonresident of the county, pending the litigation of the rights of the parties under an order of interpleader. James v. Sams, 1892, 90 Ga. 404, 17 S.E. 962. Interpleader 22

Where pending a suit by creditors of the holder of a certificate of deposit issued by a firm of bankers, another suit is brought against them by the present holder of the certificate, who took it from the former holder after the first suit was brought, and an order interpleading the claimants is granted, it is proper to issue an injunction restraining the prosecution of the actions pending the termination of the interpleader. James v. Sams, 1892, 90 Ga. 404, 17 S.E. 962. Interpleader 22

12. Unliquidated claims

Wounded police officer's claim to have set aside judgment in city's interpleader action directing distribution of money recovered from person involved in shootout with police was not moot on ground that officer's claim was unliquidated. Code, §§ 81A-160, 81A-160(d). Johnson v. Mayor & City Council of City of Carrollton, 1982, 249 Ga. 173, 288 S.E.2d 565. Interpleader 8(1)

Fact that one's claim is unliquidated is not necessarily a bar to participation in interpleader. Johnson v. Mayor & City Council of City of Carrollton, 1982, 249 Ga. 173, 288 S.E.2d 565. Interpleader 8(1)

13. Timing of bill of interpleader

A bill to coerce interpleading between adverse claimants to a fund comes too late after one of the claimants has recovered judgment. Moore v. Hill, 1877, 59 Ga. 760. Interpleader 18

The time to file a bill of interpleader is before judgment for the fund has been rendered in favor of one of the claimants against the stake-holder. Brown v. Wilson, 1876, 56 Ga. 534. Interpleader 18

When a bill of interpleader is filed by trustees to obtain the directions of a Court of Chancery, and a proper case is made, it is too late for defendants after long acquiescence, to move to dismiss it, on the ground that it was filed too late. Cooper v. Jones, 1858, 24 Ga. 473. Interpleader 30

14. Verification of bill of interpleader

Under Civ.Code 1910, § 5472, requiring petition for interpleader to be verified, affidavit to amendment to answer in nature of interpleader, stating merely that the facts therein were not omitted from the original answer, or set up in the amendment, for purpose of delay, but not stating that they were true, was not a sufficient verifica-

tion. Washington Loan & Banking Co. v. Folly Beach Corp., 1922, 154 Ga. 366, 114 S.E. 207. Interpleader 24

15. Necessity of hearing

Where claimant in interpleader proceeding filed unverified claim, made no appearance and offered no evidence, claim was properly dismissed for want of prosecution. Whatley v. Alto Corp., 1955, 211 Ga. 718, 88 S.E.2d 398. Interpleader 30

An order for interpleader should not be granted ex parte, but, only after due opportunity for hearing. Smith v. Horton, 1916, 144 Ga. 496, 87 S.E. 655. Interpleader 20

Where petition for injunction and interpleader is filed, the order for interpleader should only be granted after a proper case is made at the interlocutory hearing. Schwarz v. Monsees, 1914, 142 Ga. 734, 83 S.E. 670. Inter- pleader 31

After a decree that the defendants interplead, the complainant in the bill, if he seeks no further relief, is not entitled to be heard in argument at all, much less to be heard in conclusion. Andrews v. Halliday, 1879, 63 Ga. 263 . Interpleader 31

It is no error in a presiding judge to refuse to hear a motion to dismiss a bill of interpleader, on the ground that such bill is not up for hearing. Cooper v. Jones, 1858, 24 Ga. 473. Interpleader 30

16. Relief awarded

Stakeholder's successful invocation of the interpleader procedure serves to discharge him from the threat of potential liability to the adverse claimants of the disputed funds. O.C.G.A. § 9-11-22. Gilbert v. Montlick & Asso- ciates, P.C., 2001, 248 Ga.App. 535, 546 S.E.2d 895, certiorari denied. Interpleader 21

The remedy for interpleader provided for in Civil Practice Act is in addition to and in no way supersedes or limits the remedy of equitable interpleader. Code, §§ 37-1503 et seq., 37-1505, 81A-101 et seq., 81A-122, 81A-122(a, b). Stone v. Davis, 1978, 242 Ga. 17, 247 S.E.2d 756. Interpleader 16

Where there was no proof or admission that county's claim against insolvent estate of deceased sheriff for tax moneys unaccounted for by sheriff was barred by limitations, county's claim was properly ordered paid from funds deposited in the registry of the court by interpleading administratrix. Code, § 3-709. Savannah Bank & Trust Co. v. Meldrim, 1943, 25 S.E.2d 567, 195 Ga. 765. Interpleader 32

Where county on behalf of the state had filed, in administratrix' interpleader suit, claim against insolvent estate of deceased sheriff for tax money collected and unaccounted for by sheriff, an award to county to be applied to taxes due the state was not improper because the state had made no appearance. Savannah Bank & Trust Co. v. Meldrim, 1943, 25 S.E.2d 567, 195 Ga. 765. Interpleader 32

Where insurer pays fund into court, and interpleads claimants, court may award fund on equitable principles without regard to technical defenses open to insurer under regulations made by it solely for its benefit. Dell v. Varnedoe, 1918, 148 Ga. 91, 95 S.E. 977. Interpleader 32

Allegations of a petition, praying for an injunction to restrain proceedings on application for appointment of receiver and that receiver be restrained from selling bonds deposited by fidelity company as surety on sheriff's bond, held not to make out a bill of interpleader, under Civ.Code 1910, § 5471, but to furnish basis for an equitable proceeding in which the rights of all parties could be litigated. Ben Hill County v. Massachusetts Bonding & Ins. Co., 1915, 144 Ga. 325, 87 S.E. 15. Interpleader 16

After an attorney at law collected money at the instance of one member of a partnership, he received notice from each of the partners not to pay it to the other, and one of the firm moved a rule against him in the F. superior court to compel payment. It appeared that none of the parties lived in F. county, but one resided in C. and one in B. and one in G. Held, on an interpleader alleging such facts, the court should have permitted the attorney to pay the money to the partner with whom he had contracted, on such partner's giving bond, and dismissed the bill of interpleader, leaving the parties to litigate before the proper tribunal. Perkins v. Trippe, 1869, 40 Ga. 225. Inter- pleader 32

17. Service

Federal court in interpleader action sitting in Georgia properly quashed as void attempted service by publication on Indian corporation in a third-party action which was in the nature of an action in personam. Code, Ga. §§ 81-204, 81-205, 81-207.1. James Talcott, Inc. v. Allahabad Bank, Limited, 1971, 444 F.2d 451, certiorari denied 92 S.Ct. 280, 404 U.S. 940, 30 L.Ed.2d 253. Interpleader 20

18. Discovery

The rule that, where a discovery is sought, the answers thereto, in so far as responsive to the interrogatories, can be overcome only by two witnesses, or one witness and corroborating circumstances, applies to bills of interpleader where one defendant seeks a discovery from another defendant. Perkins v. Morgan, 1899, 107 Ga. 835, 33 S.E. 705. Interpleader 29

19. Jurisdiction

Although there was no valid process served upon Florida second defendant, in interpleader action brought by bank domiciled in Georgia against Florida guardian and second defendant, court could decide as to disposition of funds held by bank without personally affecting second defendant. Fed.Rules Civ.Proc. rule 22, 28 U.S.C.A. Georgia Sav. Bank & Trust Co. v. Sims, 1971, 321 F.Supp. 307. Interpleader 17

Use of interpleader provision of Civil Practice Act does not effect change of provisions of Constitution relating to venue of civil cases, and venue in action where there is counterclaim, cross claim or third-party claim for interpleader is proper only in county of residence where one of claimants resides. Code, §§ 81A-101 et seq., 81A-122; Const.Art. 9, § 2, Pars. 1-6. Kelly v. Citizens & Southern Nat. Bank, 1981, 160 Ga.App. 405, 287

S.E.2d 343. Interpleader 17

Where one claimant to fund was resident of county in which action was originated, venue was proper in such county following interpleader even though other claimant resided in another county. Code, §§ 81A-101 et seq., 81A-122; Const.Art. 9, § 2, Pars. 1-6. Kelly v. Citizens & Southern Nat. Bank, 1981, 160 Ga.App. 405, 287 S.E.2d 343. Interpleader 17

Where injured parties, injured party's insurer and heirs of deceased passenger consented to the terms, conditions and provisions of order allowing interpleader and attorney fees and costs, trial court had jurisdiction and did not err in granting interpleader and in allowing expenses. Code, §§ 37-1503, 56-3405b(d)(1). Blaylock v. Georgia Mut. Ins. Co., 1977, 239 Ga. 462, 238 S.E.2d 105. Interpleader 17; Interpleader 35

Where contractor which repaired fire damage to insureds' home brought suit in Chatham County Superior Court against insureds and insurer asserting equitable lien against proceeds of policy, and insurer responded in nature of interpleader and was ordered to pay proceeds into registry of court, the Superior Court had jurisdiction even though insureds were residents of DeKalb County. Const. art. 6, § 14, par. 3. Williams v. Overstreet, 1973, 230 Ga. 112, 195 S.E.2d 906. Interpleader 17

Interpleader is an equitable proceeding and must be brought in county of residence of one against whom sub- stantial equitable relief is prayed. Const. art. 6, § 14, par. 3. Gunby v. Harper, 1960, 114 S.E.2d 856, 216 Ga. 94. Interpleader 16; Venue 22(6)

Superior court of county of situs of land held without jurisdiction to enjoin sale under security deed and to require resident grantee to set up facts by interpleader with respect to tax executions purchased by holder of prior security deed, in absence of showing that grantee would be substantially affected by judgment. Code 1933, § 3-202. Millen Hotel Co. v. Chastaine, 1936, 183 Ga. 172, 188 S.E. 4. Interpleader 17

Though a clear case for interpleader was not made, equity had jurisdiction to prevent a multiplicity of suits and a consequent waste of funds in dispute. Fleming v. Blosser Printing Co., 1903, 118 Ga. 86, 44 S.E. 805. Inter- pleader 6

Where, pending a suit by creditors of the holder of a certificate of deposit issued by a firm of bankers, suit is brought against them by the present holder of such certificate, who took it from the former holder after the first suit was brought and after a receiver therein had been appointed, the superior court of the county in which both suits are pending has jurisdiction, at the instance of the bankers, to order plaintiff in such second suit to be made a party defendant to the first suit, and litigate his claims to such deposit, though he is a nonresident of the county. James v. Sams, 1892, 90 Ga. 404, 17 S.E. 962. Interpleader 17

20. Parties

It was proper to dismiss former employer that was sued by former employee, as former holder of disputed funds

against which two law firms who represented employee had potentially adverse claims, upon deposit of funds in- to registry of court, as no further relief was sought from employer. O.C.G.A. §§ 5-6-34(b), 9-11-22. Gilbert v. Montlick & Associates, P.C., 2001, 248 Ga.App. 535, 546 S.E.2d 895, certiorari denied. Interpleader 19

Where adverse claims on a fund have in fact been interpleaded, it is proper to dismiss the holder of a disputed fund as a party to the action, assuming that no further relief against the holder is being sought or necessary. O.C.G.A. § 9-11-22. Gilbert v. Montlick & Associates, P.C., 2001, 248 Ga.App. 535, 546 S.E.2d 895, certiorari denied. Interpleader 19

If no direct personal liability is being sought and the only claims are to the funds that a party holds, the party's capacity in the action is that of merely a stakeholder. Gilbert v. Montlick & Associates, P.C., 2001, 248 Ga.App. 535, 546 S.E.2d 895, certiorari denied. Interpleader 19

Where adverse claims on fund have in fact been interpleaded, it is proper to dismiss holder of disputed fund as party to action, assuming that no further relief against holder is being sought or is necessary; under such circumstances, mere stakeholder's successful invocation of interpleader procedure serves to discharge him from threat of potential liability to adverse claimants of disputed funds. O.C.G.A. § 9-11-22. Thompson v. Bank of South, 1984, 172 Ga.App. 579, 323 S.E.2d 877. Interpleader 19

To extent that trial court's order found bank's interpleader action was authorized, bank was properly dismissed as party, where no claims premised upon its existing personal liability were being asserted against bank, but bank was not entitled to general release from any and all liability regarding certain accounts, where any claims predic- ated upon bank's existing personal liability to rightful claimant of accounts would not be based upon bank's capacity as “mere stakeholder” of disputed account and authorization of its interpleader action would not resolve those claims. O.C.G.A. §§ 9-11-22, 11-3-419. Thompson v. Bank of South, 1984, 172 Ga.App. 579, 323 S.E.2d 877. Interpleader 19

In action for confirmation of foreclosure sale and to require creditors to interplead as to their claims to proceeds of sale, trial court did not err in refusing to dismiss creditor as party defendant, in view of fact that issues remained unresolved between such creditor and competing creditor which was not party to consent order. C&S Land, Transp. & Development Corp. v. Grubbs, 1977, 141 Ga.App. 393, 233 S.E.2d 486. Interpleader 19

Where money in the hands of a stakeholder has been assigned to several persons to an amount greater than that in the stakeholder's hands, on interpleader not only the parties claiming by assignment, but creditors seeking to subject the fund in garnishment, should be made parties. Western & A. Ry. Co. v. Union Inv. Co., 1907, 128 Ga. 74, 57 S.E. 100. Interpleader 19

To a petition of interpleader by a debtor against his creditor and the latter's creditors, who claim specific liens on the debtor's property as security for their demands, the creditors of the petitioner are necessary parties. Bell v. Gunn, 1894, 94 Ga. 642, 21 S.E. 899. Interpleader 19

21. Sufficiency of pleadings

If stakeholder knows all facts and questions of law are not intricate or debatable, petition for interpleader will not lie; but it is not incumbent upon holder to decide at his peril close questions either of law or of fact to entitle him to have parties in interest set up their claims for determination, though it is necessary that petition show at least two persons having conflicting claims to fund in hand and that each is apparently well founded. Code, § 37-1503. Gunby v. Harper, 1960, 114 S.E.2d 856, 216 Ga. 94; Mullins v. Autry, 1946, 200 Ga. 645, 38 S.E.2d 390.

Before a stakeholder can call upon adverse claimants to funds in his hands to interplead he must satisfactorily show to court that their claims have such a foundation in law as will create a reasonable doubt as to his safety in undertaking to determine for himself to whom the fund belongs. Code, § 37-1503. Mullins v. Autry, 1946, 200 Ga. 645, 38 S.E.2d 390; Franklin v. Southern Ry. Co., 1904, 119 Ga. 855, 47 S.E. 344.

Requirements of interpleader statute were not satisfied where one claim was only against the realty of several plaintiffs, where other claims were against only money which was held by plaintiffs and which was owed to a bankrupt subcontractor, and where still another claim was an in personam claim on a check against only one of the plaintiffs. Code, §§ 37-1503, 81A-122. Farris v. U. S., 1973, 230 Ga. 862, 199 S.E.2d 782. Interpleader 11

Where insurer did not hold any funds to which more than one person was making a claim and alleged no facts to show that issue concerning one defendant's insurable interest could not be adjudicated as well in her action against insurer as in interpleader action, no claim was stated for interpleader or injunction, and trial judge's recit- al in judgment dismissing complaint that case of another defendant against another insurer had proceeded to judgment was not essential to the ruling made and reversal of judgment in that case would not authorize a reconsideration of judgment dismissing interpleader complaint. Farmer's Co-op. Ins. Co. v. Hicks, 1972, 229 Ga. 105, 189 S.E.2d 419. Interpleader 23

Interpleader petition of prime contractor holding retainages payable to subcontractor, to which retainages defendants asserted conflicting claims totaling more than retainages, stated claim upon which relief could be granted even if one or more of the claims appeared lacking in merit. Code, §§ 37-1503, 81A-122, 81A-186. Algernon Blair, Inc. v. Trust Co. of Georgia Bank of DeKalb, 1968, 224 Ga. 118, 160 S.E.2d 395. Interpleader 23

Claim of widow of grantor whose death had resulted in payment by insurer of amount past due on debt to bank stated cause of action for money judgment against grantee who had agreed to assume indebtedness, in interpleader action filed by bank, wherein widow and grantee asserted claims. Code, §§ 103-302, 103-501, 103-502. Betts v. Brown, 1964, 219 Ga. 782, 136 S.E.2d 365. Interpleader 26

Petition by person owing debt claimed by two parties sufficiently alleged cause of action for interpleader. Code, § 37-1503. Adrian Lumber Co. v. Gillis, 1963, 219 Ga. 180, 132 S.E.2d 186. Interpleader 23

Vendors' petition was insufficient to state a cause of action for interpleader as to right to commission between brokers allegedly making sale, and a broker who had been given an exclusive listing, where it was alleged ex-

clusive listing agreement had expired before the sale, as claim of broker who had exclusive listing, if valid, would have presented a question of double liability and not of double vexation for a single liability. Calhoun v. Lawrence, 1961, 217 Ga. 423, 122 S.E.2d 576. Interpleader 23

Petition alleging claims to proceeds of a life policy by insured's mother, as originally designated beneficiary, by insured's wife on theory that a change of beneficiary to herself was accomplished, and claim of children of insured on basis of an instrument executed by wife and mother wherein each waived claim to the proceeds and stipulated that they be used to establish a trust fund for benefit of the children, stated a cause of action for interpleader. Code, § 37-1503. Kimbrell v. Lincoln Nat. Life Ins. Co., 1961, 217 Ga. 335, 122 S.E.2d 94. Interplead- er 23

In interpleader proceeding, each contestant occupied position of plaintiff as against other and should state his claim plainly, clearly and distinctly, and, as far as possible, take issue with the claims of the others. Gunby v. Harper, 1960, 114 S.E.2d 856, 216 Ga. 94. Interpleader 26

Owner of realty was not entitled to require two real estate brokers with whom the owner had separate contracts to sell property to interplead and set up their claims for one commission out of a fund held in part by one defendant growing out of the sale of the property by him where allegations of petition were insufficient to render it doubtful or dangerous for owner to act and were insufficient to inform court of the nature, character and foundation of one broker's alleged claim so as to enable the court to determine whether interpleader was essential to owner's protection. Code, § 37-1503. Lilley v. Nixon, 1958, 214 Ga. 548, 105 S.E.2d 716. Interpleader 23

In interpleader proceedings in Superior Court by insurer against insured, finance company, and clerk of Civil Court of Fulton County, petition alleging that insurer had issued to insured on automobile purchased by him a policy containing loss-payable clause to insured and finance company, and that insured had filed suit in Civil Court to recover $1,740 as principal, and damages, and attorney's fees, because of destruction of automobile by fire, and alleging that insured was indebted to finance company in sum of $1,629.36, and that finance company had demanded payment from insurer, was insufficient to show that insurer was entitled to interpleader. National Auto. Ins. Co. v. Vaughn, 1958, 213 Ga. 806, 102 S.E.2d 1. Interpleader 23

Response, which was filed by claimant in interpleader action by building and loan association to require temporary administrator of estate and the claimant against said estate to interplead and set up the respective claims to savings account held by association, and which alleged that decedent had made gift of savings account to claimant by certain acts even though decedent was physically unable to read or write, stated a cause of action which raised questions for jury and was not subject to general demurrer of defendant administrator. Code, §§ 48-101, 48-201. Swann v. Morris, 1956, 212 Ga. 460, 93 S.E.2d 673. Interpleader 26

Petition to require original beneficiary and purported substitute beneficiary to interplead and set up their respective claims to proceeds of life policy was insufficient. Code, § 37-1503. Lowery v. Independent Life & Acc. Ins. Co., 1953, 209 Ga. 753, 76 S.E.2d 5. Interpleader 23

Insurer seeking to require original beneficiary, purported substitute beneficiary, and assignee of purported substitute beneficiary to interplead and set up their respective claims to life policy proceeds could not be required to allege when and in what manner assignment had been made. Code, § 37-1503. Lowery v. Independent Life & Acc. Ins. Co., 1953, 209 Ga. 753, 76 S.E.2d 5. Interpleader 23

Petition for interpleader alleging that proceeds of life policy payable to executor or administrator of insured, or to relative of insured incurring burial expenses, were claimed by defendant executor of estate of insured and by another defendant, but failing to allege that such other defendant was a relative of insured or incurred burial expenses, or to make other allegations as to nature, character or foundation of claim to money by such other defendant, so as to enable court to determine whether claim was well-founded and whether interpleader was essential to plaintiff's protection, was demurrable. Code, § 37-1503. Reed v. Metropolitan Life Ins. Co., 1950, 206 Ga. 604, 58 S.E.2d 183. Interpleader 23

A petition by bank holding large sum of money belonging to the state to require interpleader between lieutenant governor who claimed to be governor upon resignation of former governor, and person elected by General As- sembly upon death of candidate who received majority in election, was not demurrable. Thompson v. Talmadge, 1947, 201 Ga. 867, 41 S.E.2d 883. Interpleader 23

Petition alleging that decedent had left with petitioner a letter instructing him to turn money that decedent had on deposit with petitioner over to a specified person after his death, that the specified person claimed the money as a gift and had notified petitioner to pay it to no one else, that the administratrix had claimed the fund for administration, and that petitioner held it in trust as a stakeholder and could not safely pay it to either party showed conflicting claims of such doubt as to render “interpleader” proper. Code, § 37-1503. Cannon v. Williams, 1942, 194 Ga. 808, 22 S.E.2d 838. Interpleader 23

Before one occupying the situation of a stakeholder can call upon adverse claimants of fund in his hands to interplead, he must satisfactorily show that their claims have such a foundation in law as will create a reasonable doubt as to his safety in undertaking to determine for himself to whom the fund belongs. Code 1933, § 37-1503. Smith v. Folsom, 1940, 190 Ga. 460, 9 S.E.2d 824. Interpleader 8(2)

Where administrator instituted interpleader proceeding to settle issue between attorney and client as to disposition of client's interest in the estate half of which was claimed by attorney under employment contract, response of client, setting forth right as heir at law to distributive share in the estate and repudiating power of attorney and contract of attorney's employment on ground of fraud, was not subject to general demurrer. Code 1933, § 20-906. Cobb v. Daughtry, 1939, 188 Ga. 70, 2 S.E.2d 638. Interpleader 26

Conflicting claims of at least two persons, apparently well founded, to fund in hands of person having no interest in or claim thereon, and who, as between conflicting claimants, is perfectly indifferent are essential to maintenance of petition for interpleader. Code 1933, § 37-1503. Millen Hotel Co. v. Chastaine, 1936, 183 Ga. 172, 188 S.E. 4. Interpleader 6

Executor's petition seeking adjudication of claims to property devised by executor's testator held not sustainable as proceeding in nature of interpleader, since not seeking affirmative equitable relief as to any interest claimed by petitioner. Phillips v. Kelly, 1932, 176 Ga. 111, 167 S.E. 281. Interpleader 23

Petition charging that advances were made as security on pre-existing debt does not raise question whether con- veyances were void for want of new consideration. Hawkes v. Mobley, 1932, 174 Ga. 481, 163 S.E. 494. Inter- pleader 23

Answer admitting signing blank assignment of policy by claiming signatures and conditions of assignment were changed held insufficient as plea of forgery. Bonner v. Merchants' Bank of McRae, 1929, 168 Ga. 782, 149 S.E. 133. Interpleader 26

In petition for interpleader, the conflicting claims must be set forth so as to inform court of their nature, character, and foundation to the extent of enabling court to determine whether or not interpleader is essential to plaintiff's protection. Knight v. Jackson, 1923, 156 Ga. 165, 118 S.E. 661. Interpleader 23

Under Civ.Code 1910, § 5472, an answer in the nature of a petition for interpleader was properly stricken, whether neither therein nor in the affidavit attached thereto was there any statement negativing noncollusion. Washington Loan & Banking Co. v. Folly Beach Corp., 1922, 154 Ga. 366, 114 S.E. 207. Interpleader 24; Inter- pleader 25

Answer in nature of interpleader by acceptor of bill of exchange sued by holder held insufficient because it denied the holder's title to the paper or that defendant owed the holder anything. Washington Loan & Banking Co. v. Folly Beach Corp., 1922, 154 Ga. 366, 114 S.E. 207. Interpleader 24

Under Civ.Code 1910, § 5471, allegations of petition filed by administrators as to their readiness to distribute estate and as to conflicting claims were sufficient as against general demurrer to sustain petition and authorize an order to interplead. Fay v. Burton, 1918, 147 Ga. 648, 95 S.E. 224. Interpleader 23

On petition by trustee, holding fund for distribution, requiring claimants to interplead, pleadings of codefendants held to set up claim to income from fund. Estill v. Estill, 1917, 147 Ga. 358, 94 S.E. 304. Interpleader 26

On petition by trustee, holding fund for distribution, to require claimants to interplead, where claimants had filed timely answer to petition, their amendments to answer were timely. Estill v. Estill, 1917, 147 Ga. 358, 94 S.E. 304. Interpleader 26

On petition by trustee, holding fund for distribution, to require claimants to interplead where their answer admit- ted allegations of petition, there was sufficient basis to amend by. Estill v. Estill, 1917, 147 Ga. 358, 94 S.E. 304 . Interpleader 26

While strict bill of interpleader involves two suits, petition in nature of bill of interpleader does not necessarily involve two sets of pleadings, though better practice might be to require them. Estill v. Estill, 1917, 147 Ga. 358, 94 S.E. 304. Interpleader 1

Where plaintiff's petition assumed that she could not compel purchaser to pay entire purchase price until question of rights of judgment creditors of her husband, who had shortly before judgment conveyed to her undivided one-half interest therein, was determined, it states no cause of action against purchaser; plaintiff having no right of action against judgment creditors. Price v. Aldred, 1917, 147 Ga. 258, 93 S.E. 403. Interpleader 23

Where rent notes were transferred by lessor to bank and premises were subsequently sold by lessor's trustee in bankruptcy, tenant's petition for interpleader under Civ.Code 1910, § 5471, against bank and purchaser of premises to determine which was entitled to rent was not subject to demurrer on ground that claims were not identical. Fourth Nat. Bank of Macon v. J.R. & S.E. Odom, 1917, 147 Ga. 170, 93 S.E. 91. Interpleader 23

Where an equitable petition was filed and an order made authorizing plaintiff to pay into the court the fund in controversy and be discharged and requiring defendants to interplead, failure of one defendant to file an answer until after call of the docket at the appearance term and entry of default as to him did not put him in default as to his codefendant with whom he was ordered to interplead where no time limit had been fixed in the order. Smith v. Horton, 1916, 144 Ga. 496, 87 S.E. 655. Interpleader 26

Where the petition alleged that plaintiff had sent circulars to certain real estate firms, calling attention to land which he had for sale, asking them to undertake the sale at a stated price, that a sale was made, and that each of two of certain defendants claimed to have made the sale, that one of them had instituted suit for commission, and that the other threatened to sue, it was sufficient to show that plaintiff was a mere stakeholder, entitled to an interpleader. Little & Green v. Davis, 1913, 140 Ga. 212, 78 S.E. 842. Interpleader 23

A bill in the nature of a “bill of interpleader” is one where complainant seeks relief of an equitable nature concerning the fund or subject-matter in the suit, in addition to the interpleader of conflicting claimants, and complainant is not required, as in strict interpleader, to be an indifferent stakeholder without interest in the subject- matter; but the facts on which he relies must entitle him to equitable rather than legal relief, and he cannot, under the guise of a bill in equity, litigate a purely legal claim. McKinney v. Daniels, 1910, 135 Ga. 157, 68 S.E. 1095. Interpleader 16

When the defendants in a bill are entering on the final trial of their case under a decree requiring them to interplead, it is not competent for one of them to vary the pleadings by amendment so as to raise questions with the complainant in the bill touching the amount of the fund, waste, etc. Andrews v. Halliday, 1879, 63 Ga. 263. In- terpleader 23

D. delivered tobacco to M. for safe-keeping. H. afterwards presented an order from D. for the tobacco, and requested M. to take charge of the tobacco and sell it for him, which M. agreed to do. M. afterwards sold the tobacco on account of H., but did not pay over the proceeds; H. being indebted to him on certain partnership trans-

actions. Before the tobacco was sold, D. verbally revoked his order to deliver to H., and after the sale he revoked the order in writing. H. having brought, and D. having threatened to bring suit against M. to recover the value of the tobacco, the latter filed a bill of interpleader. Held, that M. did not make out such a case as entitled him to maintain a bill of interpleader, on the ground that he was an innocent stakeholder. Hatfield v. McWhorter, 1869, 40 Ga. 269. Interpleader 11

22. Questions for court

Whether plaintiff is entitled to interplead is a decision for court. 28 U.S.C.A. §§ 1335, 1397, 2361. Savannah Bank & Trust Co. of Savannah v. Block, 1959, 175 F.Supp. 798. Interpleader 31

When court decides that plaintiff is entitled to interplead, it should discharge plaintiff and leave claimants of fund to try out their competitive claims before jury; and particularly is this true where neither set of contesting claimants asks for jury trial of issue of whether plaintiff is entitled to interplead. 28 U.S.C.A. §§ 1335, 1397, 2361. Savannah Bank & Trust Co. of Savannah v. Block, 1959, 175 F.Supp. 798. Interpleader 31

In interpleader suit, where decree was granted allowing petitioner to pay the fund in controversy into registry of the court and ordering defendants to set up their respective claims, verdict that the fund “be applied to the payment of said sums pro rata” was sufficient, without necessity of dealing with petitioner's right to maintain the petition for interpleader or of returning verdict against other parties. Smith v. Folsom, 1940, 190 Ga. 460, 9 S.E.2d 824. Interpleader 31

23. Questions for jury

Predecessor trustee and broker were asserting separate and noncompeting claims and, therefore, successor trustee was not entitled to summary judgment on its interpleader action in which it conceded it had no claim to $60,000 to which predecessor trustee was entitled under terms of resignation agreement; predecessor trustee claimed compensation for its actions in marketing and developing trust property, while broker sought fee for finding ready, willing, and able purchaser for property. O.C.G.A. §§ 9-11-22, 23-3-90. Trust Co. Bank v. Cit- izens & Southern Trust Co., 1990, 260 Ga. 124, 390 S.E.2d 589. Interpleader 33

In interpleader to determine rights, as between administratrix of donor causa mortis and the alleged donee, to money held by petitioner, evidence was insufficient to take to jury issue whether there was a deficiency of alleged donor's assets or whether it would be necessary to use any portion of the gift to pay donor's debts so as to entitle administratrix to require the donee to account. Code, §§ 37-1503, 48-101 to 48-103, 48-201. Cannon v. Williams, 1942, 194 Ga. 808, 22 S.E.2d 838. Interpleader 31

24. Sufficiency of evidence

Evidence that bank held properly recorded deed to secure debt on property which was second in priority to foreclosing mortgagee's interest and that mortgagor was indebted to bank in sum of $25,645.46 on promissory note secured by deed to secure debt was sufficient to justify award of excess proceeds from foreclosure sale to bank in interpleader action brought by foreclosing mortgagee. McHaffie v. Decatur Federal Sav. and Loan Ass'n,

1994, 214 Ga.App. 368, 448 S.E.2d 36. Interpleader 29

Evidence that union practice was to pay death benefit fund to next of kin of deceased worker in absence of a designated beneficiary supported verdict for guardian of deceased worker's son as against worker's mother. Rus- sell v. Ware, 1964, 220 Ga. 387, 139 S.E.2d 310. Interpleader 29

In action to recover for sand sold under contract wherein claimants brought in by interpleader claimed proceeds of sale, contending that the sand had been removed from their property, evidence was sufficient to support verdict for such claimants. Edmiston v. Whitney Land Co., 1944, 198 Ga. 546, 32 S.E.2d 259. Interpleader 29

Claim by one defendant to money in plaintiff's hands under gift invalid for want of delivery, and trust invalid because resting in parol, held insufficient to support suit for interpleader. Knight v. Jackson, 1923, 156 Ga. 165, 118 S.E. 661. Interpleader 8(1)

In tenants' interpleader proceeding against execution plaintiff and purchaser of leased land at execution sale to determine which defendant was entitled to part of cotton crop as rent, the jury's verdict for purchaser was supported by the evidence. Frost v. Render, 1880, 65 Ga. 15. Interpleader 29

25. Costs

To extent that propriety of foreclosure was made issue in security deed holder's counsel's interpleader action to determine proper disbursement of surplus funds from foreclosure sale, security deed holder was indispensible party, and, in absence of holder, trial court was limited to determining appropriate claimant to surplus and expenses and fees incurred in bringing interpleader action. O.C.G.A. §§ 9-11-19, 23-3-90. McCalla, Raymer, Padrick, Nichols & Clark, L.L.C. v. C.I.T. Financial Services, Inc., 1998, 235 Ga.App. 95, 508 S.E.2d 471. In- terpleader 39

26. Attorney fees

In interpleader action initiated by administrator of estate of deceased driver, trial court properly taxed attorney fees and costs incurred by administrator against insurer and in favor of insured, the prevailing party, where court had already allowed administrator to recover her costs from fund deposited in court. O.C.G.A. § 23-3-90. Chero- kee Ins. Co. v. Lewis, 1992, 204 Ga.App. 152, 418 S.E.2d 616, certiorari denied. Interpleader 35

27. Review

Issue of whether former employer had established right to be reimbursed for attorney fees associated with bringing interpleader action, after two law firms that represented former employee in action against employer served it with attorney liens, was not ripe for appeal, in light of fact that trial court had not determined whether employee or law firm had to pay one-half of attorney fees and costs. Gilbert v. Montlick & Associates, P.C., 2001, 248 Ga.App. 535, 546 S.E.2d 895, certiorari denied. Interpleader 34

Enumeration of error was deemed abandoned on appeal of order directing that upon former employer's deposit into court registry two payments due to former employee, employer would be dismissed with prejudice from interpleader action brought after two law firms served attorney liens on employer, when employee did not refer- ence record or support claim of error by any citation to authority or reasoned argument. Gilbert v. Montlick & Associates, P.C., 2001, 248 Ga.App. 535, 546 S.E.2d 895, certiorari denied. Interpleader 34

After trial court entered Court of Appeals' remittitur as judgment of trial court, thereby ending bank's interpleader action to determine who had authority over church's accounts, there was no justiciable issue ripe for consideration, and thus trial court improperly retained jurisdiction to consider propriety of church executive board's suc- cessive attempts to remove bishop, where pleadings were not amended to assert any other claims, and there was no allegation that bishop or his successor attempted to write any other checks in name of church. First Born Church of Living God, Inc. v. Bank of America, N.A., 2001, 248 Ga.App. 500, 546 S.E.2d 1, reconsideration denied , certiorari denied. Interpleader 34

Order which held that interpleader was viable remedy and dismissed the instigating stakeholder was not directly appealable absent clear direction by trial court of entry of final judgment. O.C.G.A. § 9-11-54(b). Custom One- Hour Photo of Georgia, Inc. v. Citizens & Southern Bank, 1986, 179 Ga.App. 70, 345 S.E.2d 147. Interpleader 34

In action for confirmation of foreclosure sale and to require creditors to interplead as to their claims to proceeds of sale, trial court did not err in ordering funds transferred to clerk of court in county in which suit between competing creditors was pending so that adjudication of parties' interests could be made in such pending suit. Code, §§ 37-1501, 37-1503, 37-1505, 81A-101, 81A-118(a), 81A-120(a), 81A-122. C & S Land, Transp. & De- velopment Corp. v. Grubbs, 1977, 141 Ga.App. 393, 233 S.E.2d 486. Interpleader 21

In action for confirmation of foreclosure sale and to require creditors to interplead as to their claims to proceeds of sale, trial court did not err in overruling creditor's motion to pay excess funds and interest into registry of court, in view of fact that all funds required by consent order to which movant was not a party had been previously deposited with court. C & S Land, Transp. & Development Corp. v. Grubbs, 1977, 141 Ga.App. 393, 233 S.E.2d 486. Interpleader 21

Where contractor which had repaired fire damage to insureds' home sued insureds and insurer asserting equitable lien against policy proceeds and insurer responded in nature of interpleader, trial court properly ordered insurer to pay proceeds into registry of court. Code, §§ 37-1503, 81A-122. Williams v. Overstreet, 1973, 230 Ga. 112, 195 S.E.2d 906. Interpleader 21

In action to enjoin insurer and administrator of insured's estate from paying out proceeds of policy, judgment making certain claimants parties defendant at request of insurer was not error where it was alleged and not disputed that estate was insolvent, that claims occurring out of common disaster were in excess of policy limits and that the claimants were seeking in another court to collect entire amount of proceeds from insurer. Cannon v. Tant, 1972, 229 Ga. 771, 195 S.E.2d 15. Interpleader 14

Where bank which held funds deposited in account of plaintiff administrator's decedent, and there was no question of law which was reasonably debatable when applied to facts alleged in administrator's action to recover such money, trial court properly denied petition of bank for interpleader of persons other than administrator who claimed the funds. Code, § 37-1503. Citizens Bank of Forsyth v. Middlebrooks, 1952, 209 Ga. 330, 72 S.E.2d 298. Interpleader 8(2)

Decree to interplead is interlocutory and subject to revision, and it may, before final decree, be reviewed as having been improvidently and prematurely passed, and grant or refusal of order to interplead being a matter of ju- dicial discretion, vacation of such order upon application and cause shown is equally within court's discretion, and whether such order is vacated for irregularity or because improvidently granted or upon new facts being shown is immaterial. Code, § 37-1503. Mullins v. Autry, 1946, 200 Ga. 645, 38 S.E.2d 390. Interpleader 33

Where original petition allegedly did not show cause for interpleader because only one of alleged claims was well founded, and after decree allowing plaintiff to interplead one of claimants during term filed a motion to vacate the decree and petitioner filed an amendment which showed an apparent foundation for claim alleged by the motion to have been lacking in that respect, court after hearing pursuant to rule nisi properly overruled the motion to vacate since decree was interlocutory. Code, § 37-1503. Mullins v. Autry, 1946, 200 Ga. 645, 38 S.E.2d 390. Interpleader 33

Where there could be no overplus available to unsecured creditors of insolvent deceased sheriff, decree awarding fund in court registry to county for payment of claims against sheriff for taxes collected and unaccounted for by him was not too uncertain in not awarding the particular amounts to be paid to the state, board of education, and county, and in not stating the rate of interest and when it was to begin. Savannah Bank & Trust Co. v. Meldrim, 1943, 25 S.E.2d 567, 195 Ga. 765. Interpleader 33

In interpleader to determine rights, as between the administratrix of an alleged donor causa mortis and the alleged donee, to money held by petitioner, where administratrix pleaded that title had remained in the decedent donor and had passed to her because there was no valid gift and no will, trial court erred in directing verdict for administratrix. Code, §§ 37-1503, 48-101, to 48-103, 48-201. Cannon v. Williams, 1942, 194 Ga. 808, 22 S.E.2d 838. Interpleader 31

In interpleader suit by Atlanta Police Relief Association against a member's first and second wives to determine right to proceeds of member's benefit certificate, where first wife alleged that member agreed to maintain certificate in force for her benefit in consideration of her caring for herself and minor children and that she had fully performed contract, a subsequent allegation that first wife obtained decree of divorce and judgment against member for permanent alimony and that at time of member's death he had not paid all alimony due was to be construed as contradictory to allegation that first wife had fully performed contract with member, and hence fund was properly awarded to second wife. Freeman v. Atlanta Police Relief Ass'n, 1940, 191 Ga. 200, 12 S.E.2d 616. Interpleader 27

Where petition for interpleader did not disclose any right or cause of action in one of interpleaded defendants, dismissal of petition on general demurrer was not error as to such defendant. Alston v. McGonigal, 1934, 179

Ga. 617, 176 S.E. 632. Interpleader 23

Judgment in interpleader ordering payment of policy to assignee on executing bond for repayment if judgment is reversed held proper. Civ.Code 1910, § 5471. Bonner v. Merchants' Bank of McRae, 1929, 168 Ga. 782, 149 S.E. 133. Interpleader 33

Where trustee, holding fund for distribution, petitioned for order requiring claimants to interplead, and each claimant answered and raised issues between codefendants, it was not error to refuse to direct verdict for two claimants on ground that other defendants had not claimed fund, and claimants' answers were verified and to be taken as true. Estill v. Estill, 1917, 147 Ga. 358, 94 S.E. 304. Interpleader 31

Where a carrier having cotton in its possession filed interpleader to determine right to possession as between the consignees, the initial carrier, and certain individuals, who were asserting title in trover suits, it was improper, on preliminary hearing for an injunction, etc., to render final judgment requiring the petitioner to deliver the cotton and to pay costs of the proceedings. Charleston & W. C. Ry. Co. v. Wooten, 1913, 139 Ga. 489, 77 S.E. 572. Interpleader 33

In an action against a bank to recover on certificates of deposit, the court properly refused to order plaintiff to interplead with a stranger to the record whom defendant alleged to be the holder of the certificates; there being no appropriate pleadings under which the alleged holder could be made a party, and no prayer that he be made such. Jones v. Bank of Lula, 1911, 135 Ga. 680, 70 S.E. 640. Interpleader 23

Where a railway company bases its prayer for interpleader solely on the ground that it ought not to be compelled to determine, at its peril, whether the wages of a brakeman could be reached by garnishment at the suit of his creditors, an interpleader was improperly allowed; the Supreme Court of the state having frequently decided that the wages could not be reached, so that the railroad company could successfully defeat the attempt of the creditors of the brakeman to subject the funds in its hands to their demands. Franklin v. Southern Ry. Co., 1904, 119 Ga. 855, 47 S.E. 344. Interpleader 8(2)

The plaintiff in an equitable petition in the nature of a bill of interpleader must allege that he is in possession and control of the property, and when on the petition's face it is shown that he is neither in possession nor control, the petition is obnoxious to general demurrer. Steed v. Savage, 1902, 115 Ga. 97, 41 S.E. 272. Interpleader 27

When an order of dismissal of levy was granted, it was not error for the court to refuse to issue an order, on the ground of the insolvency of claimant, requiring the securities on the claimant's bond, in whose possession the property was, to hold the same as receivers until the final judgment of the court in the premises, or requiring them to retain the possession until a supersedeas could be sued out. Hutchinson & Bro. v. Jackson, 1874, 53 Ga. 56. Interpleader 31

Where the complainant's bill cannot be maintained as a bill of interpleader, yet, as there are other grounds for

equitable relief stated, in regard to certain claims, in the adjustment of which a Court of Equity can afford more adequate relief than a Court of law, the general demurrer to the whole bill for want of equity was properly overruled by the Court below. Hatfield v. McWhorter, 1869, 40 Ga. 269. Interpleader 27

Complainants in a bill of interpleader may appeal, if their individual rights are affected by the decree; and that one of the parties called on by said bill to litigate their rights does not appeal, does not impair or destroy the right of appeal of the complainants in the bill of interpleader. Cooper v. Jones, 1858, 24 Ga. 473. Interpleader 34

Ga. Code Ann., § 23-3-90, GA ST § 23-3-90

Current through the 2009 Regular Session.

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