We have carefully examined that part of the record relating to the action of the trial court in refusing to correct the finding, and are of opinion that the court did not err in such refusal, and that the record as made must stand.
The note sued upon is a negotiable note made by Warren and indorsed to the plaintiff for value before maturity by the payees. The plaintiff is the bona fide holder and owner of that unpaid note. Upon these facts, standing alone, it is clear that Warren has no defense to the note, and that the plaintiff is entitled to judgment thereon as against him; and this, whether Warren does or does not still owe the debt for which the note was given.
But the defendants claim that the plaintiff, having consented to interplead with the Cowles Company as to the ownership of the debt, and the court having ordered such interpleader, the plaintiff has in some manner waived or lost his right to recover upon the note. This claim is without foundation. It is true the plaintiff consented that the Cowles Company should be made a codefendant under the cross-complaint, *Page 239 and that the order to interplead as to the ownership of a debt alleged by the Cowles Company and Warren to be due to the Collins Company from Warren, should be passed; but the plaintiff did not in fact interplead with the Cowles Company as to the ownership of such debt, nor did the court compel him to do so. He made no claim to any debt which the Cowles Company claimed to have attached; indeed he denied that it had attached any debt, because, as he alleged, the debt sought to be attached had ceased to exist prior to the attachment. He denied all the facts set up in the answer of Warren and in the claim of the Cowles Company. He does not appear on the record to have formally denied the allegations of the cross-complaint, but as these were the same as those of the answer, the parties must have understood that he in effect denied the allegations of the cross-complaint in denying those of the answer, and the trial was evidently had upon such understanding. From first to last, in his pleadings and upon the trial, the plaintiff stood upon his rights as the indorsee for value, before maturity, of the note in suit, and nowhere makes any claim to any debt to which the Cowles Company laid claim by virtue of its attachment.
Looking at the interpleader proceedings in this case, and the agreements of all concerned with reference thereto, we think the parties must be regarded as having agreed to try the two principal questions presented by those pleadings, namely: (1) Whether Warren owed any debt to the Collins Company when the Cowles Company attachment was served on him. (2) Whether the plaintiff was the bona fide indorsee for value, before maturity, of the note in question. These were the main issues presented by the pleadings in the case. The facts found show that the plaintiff was such indorsee, and that no such debt existed when the attachment in question was made. Under the circumstances disclosed by the record we do not think the plaintiff waived or lost his right to recover upon the note.
The court has found, in effect, that the Cowles Company took nothing by its garnishee process against Warren, and that consequently its scire facias proceedings against him *Page 240 are without foundation. It thus appears that it has no interest whatever in the judgment that was rendered in this case, and cannot be harmed by it or be heard to object to it.
As between the plaintiff and Warren, the judgment was justified by the facts, and is correct as far as it goes. Warren claims that the court should have gone further; that he was either entitled to a judgment as in case of interpleader, or at least to one which would protect him as against the claims of the Cowles Company. The case, as presented to the court by the pleadings, and as tried, was not one of interpleader, and Warren was not entitled upon the facts found to a judgment as in case of interpleader; but there may be a question whether the court should not have rendered judgment in his favor against the Cowles Company, to the extent at least of restraining said company by injunction from further legal proceedings to enforce the collection of the debt which it claims to have attached in his hands. Upon the record in this case we think the court had the power to render such a judgment, and that upon the facts found it would have been justified in so doing. On the other hand, the rendition of such a judgment was a matter very largely within the discretion of the trial court, and there may have been good reasons why it did not render such a judgment. Under the circumstances we cannot say as matter of law that the trial court erred in not doing so.
There is no error.
In this opinion the other judges concurred.