
    The Franklin Bank et al. v. Bruns.
    
      Particular■ fund paid into court — Various claimants as to their rights to fund — Decree of distribution will not bear interest, when — ■ Supersedeas bond of intervening claimant — Fund does not bear interest.
    
    Where a particular fund is paid into court in compliance with its order of interpleader, and various claimants litigate between themselves as to their rights to the fund, a decree distributing the fund will not bear interest, and an intervening claimant who prosecutes error to that decree in good faith, and gives a supersedeas bond to stay execution cannot be compelled, in a suit on the bond, to pay interest on the fund or any part of it.
    (No. 11806
    Decided March 28, 1911.)
    Error to the Circuit Court of Hamilton County.
    The action in the court below was founded on two supersedeas bonds, given by the plaintiffs in error, in a suit between the same parties and others. One when the cause was taken on error from the superior court of Cincinnati at special term to the general term of that court and the other when the cause was taken on error to this court.
    The petition in substance avers that these bonds were given in a proceeding, brought by the Franklin Bank, against the city of Cincinnati and others, including George H. Bruns, the defendant in error here, in which the Franklin Bank asserted a lien upon a certain fund claimed to be due by the city of Cincinnati to the bank and other claimants, including Bruns; that in that proceeding, the city of Cincinnati in accordance with an order of the court, for interpleader in the case, paid to the clerk of that court the sum of $8,560.32 and was discharged from all further liability to any of the parties, on account of the claims or liens set forth; that thereafter the claims of the bank and of Bruns, and the other claimants to the fund, or any part of it, were litigated in the superior court; that on final hearing the court found in favor of the following named defendants, in said proceeding in the amounts stated, and ordered the sum distributed without priority as follows: 1. The costs of the suit taxed at $189.45; 2. To John Mueller, $1,489.95; 3. To Henry F. Kemp, $373.30; 4. To George H. Bruns the sum of $5,650.21; 5: To T. F. McClure, $859.17; and the city of Cincinnati was dismissed.
    That the Franklin Bank took exceptions to said findings, judgment and orders, and prosecuted error to the superior court in general term, and on July 20, 1900, filed the first supersedeas bond referred to; that thereafter on the third day of December, 1900, said court in general term affirmed the findings, judgments, and orders, rendered in the special term of said court, and gave judgment for costs against the plaintiffs in error; that said bank prosecuted error to the supreme court of Ohio to reverse said judgment; and upon. the 29th of December, 1900, executed the second bond referred to in the sum of $16,000 which was duly approved by the clerk of the superior court ■ of Cincinnati; that thereafter, on October 1, 1901, the said judgments were finally adjudicated and affirmed by the supreme court of Ohio.
    Plaintiff further alleges that pursuant to said orders and judgments the clerk of the superior court on October 12, 1901,* made payments to the said several parties, in the amounts stated, in accordance with the order of the court; that on that day there had accrued on plaintiff’s judgment interest for one year, three months and ten days, to-wit: the sum of $433.18.
    He further alleges that the amount paid to him, Bruns, by the clerk was the amount of his original judgment $5,650.21 which with the amounts due to the other parties and costs, consumed the fund so deposited with the clerk. Plaintiff, therefore, prays judgment for the said sum of $433.18, being the amount of interest between the first day of the special term at which judgments were rendered and the date of payment, October 12, 1901.
    In their answer to this petition the defendants aver in substance that no judgment or decree was rendered in favor of the plaintiff against the defendant, the Franklin Bank, for the sum as set forth in the plaintiff’s petition, or for any other sum whatever, and they set out in words and figures the decree that was rendered by the superior court of Cincinnati in the original proceeding of the Franklin Bank against the city of Cincinnati and others, including Bruns. That decree recites that the city of Cincinnati in compliance with an order of interpleader “made herein on June 3, 1899, had paid to the clerk of this court the sum of $8,560.32, which sum is now in the hands of said clerk to be distributed among the plaintiffs, and the remaining defendants, according to the priority of their liens upon said fund, and the court further find that the city of Cincinnati having complied with said order should be fully discharged from any liability to any of the parties herein.” The decree then proceeds to make findings in- the amounts due the several parties, including George H. Bruns, defendant in error, the amount due him being $5,650.21.
    The answer further avers that the said bank gave a bond to stay proceedings in said cause, not to the said Bruns alone, but for the use and benefit jointly and not severally of all of the defendants in said original proceeding. And further that after said judgments had been affirmed by the superior court in general term the defendants gave a second bond to stay proceedings in said cause; that said second bond was not given to the plaintiff alone, but for the use and benefit jointly and not severally of the city of Cincinnati and the other defendants named.
    The answer further avers that the plaintiff received on his judgment the sum of $5,650.21, being the full amount due and payable to him under the decree of the superior court aforesaid, and that upon receipt thereof all of his rights were fully satisfied. The answer further denies . that the plaintiff is entitled to the interest, claimed' from the 20th of July, 1900, to the 12th of October, 1901.
    The plaintiff demurred to this answer on the ground that it did not state facts sufficient to constitute a defense. This demurrer was sustained, and the defendants not desiring to plead further judgment was rendered against them, and this judgment was affirmed by the circuit court of Hamilton county, and the proceeding here is to reverse the judgments below.
    
      
      Messrs. Burch & Johnson, for plaintiffs in error,
    cited and commented upon the following authorities :
    
      Winston v. Rives, 4 Stewart & Porter (Ala.), 269; Justices v. Selman, 6 Ga., 432; Iron Works v. Lottimer, 25 Ohio St., 621; 22 Cyc., 1559; Perley on Interest, 59; Van Gordon v. Ormsby Bros. & Co., 60 Ia., 510; Anderson v. Wilkinson, 10 Sm. & M. (18 Miss.), 601; 2 Black on Judgments (2 ed.), Sec. 983; Bank v. Heard, 65 Ga., 189; Section 3181, Revised Statutes.
    
      Mr. A. J. Cunningham and Mr. Lloyd P. Baen, for defendant in error,
    cited and commented upon the following authorities:
    
      Justices v. Selman, 6 Ga., 432; Hayes v. Weaver, 61 Ohio St., 55; Iron Works v. Lottimer, 25 Ohio St., 621; 22 Cyc., 1559; Sherrell v. Shepard, 19 Fla., 300; Van Gordon v. Ormsby Bros. & Co., 60 Ia., 510; Anderson v. Wilkinson, 10 Sm. & M. (18 Miss.), 601; Hoggart v. Cutts, 1 Cr. & Ph., 196.
   Johnson, J.

It will be observed that the case of the plaintiff below is based on the claim that defendants were liable on the bonds for interest on the amount of his claim, from the first day of the term at which the decree was entered in the superior court, until the day of payment to him, by the clerk, after the affirmance of the decree by the supreme court.

Both of the bonds set out in the petition are signed by the same parties, and any rights which the plaintiff might have, could be enforced in an action on the last bond alone. Hayes v. Weaver, 61 Ohio St., 55.

It is shown in the pleadings that in the original proceedings there was an order of interpleader entered, directing the city of Cincinnati to pay to the clerk of the court the amount claimed by the Franklin Bank $8,560.32, and that the city having complied with the order, was discharged from all further liability to any of the parties to the action. That thereupon, the remaining parties interpleaded as between themselves. On the final hearing the court found the amounts due the several inter-pleading defendants, and directed the clerk to pay the same without priority, out of the fund so deposited after paying the costs. The amount ordered to be paid to Bruns by the clerk was $5,650.32. Under the order there was nothing left to apply on the bank’s claim, and it prosecuted error and gave the bonds sued on, in supersedeas. Bruns and the bank were opposing claimants to a particular fund, deposited in court under the order of interpleader. Neither had or asserted any claim against the other. No judgment or decree was rendered against the Franklin Bank in favor of Bruns in that case.

The court ordered its clerk to distribute a definite particular fund, of which the court had possession and control, and the supreme court simply affirmed that order.

“At common law judgments did not bear interest nor would they do so in Ohio, in the absence of statutory provision on the subject.” Marietta Iron Work v. Lottimer, 25 Ohio St., 627; Neil v. Bank, 50 Ohio St., 193.

The statutory provisions in Ohio on the subject are contained in Sections 3180 and 3181, Revised Statutes.

Section 3180 prescribes the rate of interest to be computed on all judgments rendered on instruments of writing.

Section 3181 provides: “And upon all judgments, decrees and orders of any judicial tribunal for the payment of money, arising out of a contract hereafter made or other transaction which hereafter occurs, the creditor shall be entitled to interest at rate of six per cent, per annum and no more.”

As above shown there was no judgment, decree or order against the Franklin Bank for the payment of money.

Bruns was not a “creditor” of the bank and did not claim to be. There was no privity of contract between any of the lienholders who were parties to the suit.

The provision of the statute under which execution may be stayed is found in Section 6718, Revised Statutes, which provides that “no proceeding to reverse, vacate or modify a judgment or final order rendered,” etc., shall operate to stay execution unless the clerk of the court in which the record of such judgment or final order is made, shall take a written undertaking to be executed on the part of plaintiff in error to the adverse party, with sufficient surety as follows; “When the judgment or -final order sought to be reversed directs the payment of money, the written undertaking shall be in double the amount of the judgment or final order, to the effect that the plaintiff in error will pay the condemnation money and costs, if the judgment or final order be affirmed in whole or in part.”

Manifestly the condemnation money and costs referred to, mean that which the plaintiff in error, was directed to pay.

The condemnation money and costs covered by the bond is only such as had been legally adjudged against the principal obligor on the bond in the original proceeding in which execution was stayed. The decree itself must bear interest before those giving the bond to stay it can be required to pay interest.

In 22 Cyc., 1559, the proposition is stated, that where a fund is in litigation, or the amount of a disputed claim is deposited in court, or subject to its order, interest is not recoverable thereon during the time it remains so deposited.

The rule is stated in 2 Black on Judgments (2 ed.), Sec. 983, viz: “In respect to interest, a decree has the same force as a judgment when it contests with other liens or claims for money. But this refers only to a decree in personam binding all the property of the debtor, and rendered against the defendant without reference to the sale of particular property and the distribution of the fund arising therefrom.”

And this principle is approved in National Bank of Augusta v. Heard, 65 Ga., 189.

In Van Gordon v. Ormsby Bros. & Co., 60 Iowa, 510, the court say: “The money-was paid into court to await the order of the court. It does not appear that the intervenors acted otherwise than in good faith, and we do not think they should be made to pay interest as punishment simply because they failed to establish their right to the money.”

This, rule was followed in Anderson v. Wilkinson, 18 Miss. (10 Sm. & M.), 601.

The fund in this case might on the motion of Bruns or any lienholder have been invested under the order of the court.

For these reasons we conclude that where a specific, fund is paid into court in compliance with its order of interpleader and various claimants litigate their rights to the fund • between themselves, a decree distributing the fund is not a judgment, or decree, within the statutes of Ohio governing interest and that an intervening claimant who prosecutes error to that decree, in good faith, and gives a supersedeas bond to stay its execution, cannot be compelled to pay interest on the fund or any part of it.

It follows from these, conclusions that the demurrer to the answer of the bank should have been overruled — and the judgments below are reversed; judgments for plaintiffs in error.

Judgment reversed.

Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur.  