Objections to cost bill overruled July 24, 1934 ON OBJECTIONS TO COST BILL (34 P.2d 978) This is a suit in the nature of an interpleader. It involves the crop of wheat grown in 1931 upon what is known in the record as the "home place" of the Higby Harris estate. A decision was rendered by this court awarding Laura Harris six-tenths of the wheat, less withdrawals made by her; Basche-Sage Hardware Company, one-tenth; Claude Harris, one-tenth; Martha Harris, one-tenth; and Mable Harris, one-tenth. The shares of the respective parties depended upon the construction of the will of Higby Harris, deceased. The plaintiff, Milton Warehouse Company, was awarded its costs. It filed a cost bill in this court amounting to $49. Basche-Sage Hardware that it should be awarded costs. Laura Harris claimed Company filed objections to the cost bill and claimed six-tenths of the wheat, Basche-Sage Hardware Company one-eighth, and Claude Harris one-eighth. Martha Harris and Mable Harris did not appeal and maintained *Page 586 neutral positions, particularly as against their mother, Mrs. Laura Harris.
The plaintiff stakeholder, Milton Warehouse Company, with which the wheat was stored and had been for some time during a controversy and litigation, was awarded its costs. There was no dispute as to one-half of the crop of wheat claimed by Laura Harris. However, she claimed a large amount of damages as against the Milton Warehouse Company and contested its right to storage charges. She, like the others, was interested in a settlement of the matter, and, in equity, should pay a portion of the costs.
In the trial court the Basche-Sage Hardware Company took a decree for one-eighth of the crop of wheat. Mrs. Laura Harris appealed and contested such decree, contending that the Hardware Company was entitled to only one-tenth of the crop of wheat, and prevailed in this court. While the Hardware Company claims to have been a disinterested party upon appeal, it was necessary for Mrs. Harris to appeal from the decree that company obtained; therefore, Basche-Sage Hardware Company should pay a portion of the costs, although that company owned an interest in the land for only one year and was interested in the crop for that time only. That company claims it did not render it necessary for the bringing of the interpleader suit, but its correspondence shows that litigation was contemplated if its rights were intrenched upon in the disposition of the wheat. As shown in the former opinion, the Milton Warehouse Company could not divide the wheat between the parties without hazarding litigation. There was unquestionably a dispute between the parties in regard to the division of the wheat.
Claude Harris was decreed a one-eighth portion of the crop by the circuit court. This rendered an appeal *Page 587 necessary in order to change the same, and he should bear a portion of the costs.
In a suit of interpleader, if properly brought, plaintiff, upon being discharged, is entitled to his costs out of the fund deposited in court, if the property so deposited is of such a nature that it is available for the payment of costs, or he is entitled to judgment for costs against some of the defendants in the suit. He may be allowed, in certain cases, a lien on the fund for his costs, but that was not deemed necessary and no one is requesting it at this time: 33 C.J. 469, § 65.
The three contesting defendants were Mrs. Laura Harris, Basche-Sage Hardware Company and Claude Harris, and it was determined, in equity and good conscience, that each should bear a small portion of the payment of costs in this court. Martha Harris and Mable Harris were satisfied that their mother should obtain a favorable decree and did not appeal or contest any of the proceedings in this court.
We gave the matter serious consideration at the time of the rendition of the opinion and believe that the costs in this court were adjusted as equitably as possible. An interpleader suit is particularly of equitable cognizance.
The objections of Basche-Sage Hardware Company to the costs will be overruled and the application of the Basche-Sage Hardware Company for a judgment for costs is denied. According to the former opinion the costs in the circuit court will be taxed by that court. It may be that the positions of the respective parties in the contest in the circuit court varied from those in this court, and the circuit court is at liberty to tax the costs in the circuit court equitably and fairly.
RAND, C.J., and CAMPBELL and BAILEY, JJ., concur. *Page 588