
    L. B. Harrison, Appellant, v. J. H. Scott, Respondent.
    St. Louis Court of Appeals,
    January 4, 1898.
    Appeal; NON-appealable ordeií. An order of court in a cause requiring nothing more than that certain' named persons be made parties by interpleas, is not a judgment or such order as can be appealed from.
    
      Appeal from the Pike Circuit Court. — Hon. Reuben P. Roy, Judge.
    Appeal dismissed.
    
      JScknonston & Cullen for appellant.
    An appeal will lie from a judgment that the various claimants do interplead. R. S. 1889, sec. 2246; Sess. Laws, 1891; Rogers v. Gosnell, 51 Mo. 466; State ex rel. v. Kumpff, 62 Mo. App. 332; Glassner v. Weisberg, 43 let, 214; Heusner v. Ins. Co., 47 Id. 336; State ex rel. v. Allen, 92 Mo. 20.
    
      Plaintiff claimed the whole debt. As Scott did not admit liability for the whole debt, he could not obtain the relief sought. Scott can not obtain a decree to interplead for part of the debt. He must claim no interest in the matter himself. Classner v. Weisberg, supra; Beach, Mod. Eq. Prac., secs. 143, 144, and citations; Bridesburg Mfg. Cods Appeal, 106 Pa. St. 275; Conley v.-Alabama C. C. I. Co., 67 Ala. 472; Kellian v. Ebbinghaus, 110 H. S. 568; B. B. v. Arthur, 90 N. Y. 234 y Long v. Barker, 85 111. 431; Lemple v. Dawson, 19 Ark. 148; Ins. Co. v. Ins. Co., 23 Minn. 7; Perkins v. Littlefield, 40 Ga. 225; 3 Pom. Jur., secs. 1320, 1325; Williard’s Eq. Jur., sec. 319, p. 401, and citations.
    “The mere fact of there being a dispute as to the amount of the fund is always fatal to a bill.” Classner v. Weisberg, supra, and citations.
    There was no evidence offered in the case, and for that reason the judgment can not stand. The burden of proof was upon Scott, who was, in legal effect, plaintiff in the bill, to sustain the allegations in his bill by evidence. Boselle v. Bank, 119 Mo. 84; Classner v. Weisberg, supra; Franco Am. L. é B. Ass’n v. Joy, 56 Mo. App. 438; Beach, Mod. Eq. Prac., sec. 641; Parker v. Concord, 39 Fed. Rqp. 718.
    No brief filed for respondent.
   Bland, P. J.

Suit on promissory note by Harrison against Scott as maker; Harrison avers that he is the owner and holder of the note for value, and that he acquired it before maturity from the payee, R. McNama. Scott admitted the execution and delivery' of the note to McNama, but denied that plaintiff Harrison acquired the note for value; denied that it was transferred to him before maturity, and avers in substance that the assignment was made for the purpose of hindering and delaying the creditors of McNama, and was without consideration, claimed a credit of $107 on the note as an offset on account of a balance due him on account of a sale of stock made by him to McNama. For a further answer he avers that he has been summoned as garnishee in divers attachment suits brought against McNama, and on sundry executions against him, asks that plaintiffs in these attachment suits and executions (naming them) be brought in and required to interplead for the amount due on the note after he is allowed his offset of $107, and offers to pay into court the balance, after allowing his offset. On this state of the pleadings the court made the following order:

“Now, at this day come the parties herein by their respective attorneys, and this cause coming on for trial before the court. And the defendant’s request for order of interpleader coming on to be heard and being submitted is by order and judgment of the court sustained. And the following parties, to wit, Martinsburg Bank, J. Gh Lakenan and A. O. Barnes, composing .the firm of Lakenan & Barnes, W. W. and C. D. Rodgers, are allowed to interplead herein. And said interpleaders by their attorneys enter their appearance as inter-pleaders in this cause, and on motion of defendant’s attorneys it is ordered that leave be given the said interpleaders to file their interpleas in this cause on or before February 1, 1897, and on motion of the defendant the first ground set up in the defendant’s answer is withdrawn. And it is ordered by the court that a summons issue for the other interpleaders, to wit: S. O. Snedicker, B. Fennewald and James Wells of Audrain county, Missouri, and by order of the court' leave is given the defendant to amend answer this day filed by annexing thereto the affidavit of W. W. Fry, his attorney, and this cause is continued.”

A motion to set aside this order, erroneously styled a judgment, -was filed and overruled; plaintiff perfected his appeal from the ruling of the court. Respondent has filed his motion to dismiss the appeal upon the ground that there was no judgment rendered by the circuit court from which an appeal will lie. The rights of no party to the suit are adjudicated by the order; no one is discharged from the suit; the order does not even carry costs; it is nothing more than an order requiring certain named persons to be made parties by inter-pleas; it possesses none of the elements of a judgment, and is not such an order as can be appealed from. The motion to dismiss appeal is therefore sustained.

All concur.  