On Rehearing. Appellant brought this suit — a bill of interpleader — against A. G. Britton, the First State Bank of Eastland, J. C. Babb, and wife, M. F. Babb, and others, in substance setting up: That in the summer of 1919 it entered into a contract with Britton whereby Britton was to haul and string certain pipe and Britton performed a part of his contract. That he became indebted to various persons in the performance of his contract, some of whom have sued the plaintiff on their claims, others have garnished it, and to the others Britton had drawn orders on plaintiff payable out of the funds in its hands belonging to him upon said contract. That in the spring of 1920 Britton brought suit in Parker county against plaintiff for an alleged indebtedness due on such contract and for damages and in the fall of 1920 recovered in said suit a judgment against plaintiff for $1,890.08 of which amount he had assigned $985.08 to the First State Bank of Eastland and $905 to M. F. Babb. That the judgment had been abstracted and clouded the title to plaintiff's lands. That the persons who have so garnished and sued plaintiff and filed claims are as follows: M. V. Jones garnished plaintiff for $686 by writ served February 2, 1920; Chas. Terry garnished plaintiff for $53 by writ served March 29, 1920, and sued plaintiff for said sum in a separate suit and served citation prior to December 29, 1919. That prior to November 30, 1920, the following persons filed with plaintiff orders from Britton on plaintiff for moneys alleged to be due for work done or supplies furnished in connection with said contract as follows: J. A. Mitcham $20; C. Terry, $53; J. L. Royal, $160.60; G. C. Sturdevant, $42; C. W. Clayton, $193.50: Strain Bellenger, $283.55. That plaintiff was indebted to Britton in said sum of $1,890.08 and no more, wherefore it offered to pay said sum into court and asked that the rights of the said parties be adjudicated and it discharged from all liability to all of the defendants.
The bank and the Babbs filed answers. The judgment recites that none of the other defendants answered. There is nothing in the record to show that such other defendants were served with citation. The case was tried without a jury and judgment rendered that the plaintiff "take nothing" and "that the several defendants be not required to interplead for the said sum of $1,890.08 or any part thereof, but that each and all of said defendants go hence without day and recover their costs."
The fact that the defendants, other than the bank and the Babbs, had not answered and no service upon them shown by the record, is immaterial. The judgment is in their favor, and they are not complaining.
The bank and the Babbs had separate and distinct rights to resist the bill of interpleader. They are the assignees of the judgment which Britton obtained against appellant and if upon the trial they showed that appellant had no right to compel an interpleader then the judgment should be affirmed. We are not advised of the theory upon which the trial court based its judgment; findngs and conclusions not being filed.
It is the general rule that a bill of interpleader comes too late when application therefor is delayed until after judgment has been rendered in favor of one of the claimants of the fund, and this is especially true where the holder of the fund had notice of the conflicting claims prior to the rendition of such judgment and an opportunity to implead the adverse claimants in the suit in which such judgment was rendered. See notes and cases cited 35 Am.Dec. 703, 91 Am. St. Rep. 598; also 5 Pomeroy's Eq. Juris. § 41.
The evidence in the opinion of the majority shows beyond dispute that the appellant permitted the Parker county suit to proceed to judgment in favor of Britton with full notice of the adverse claims of the defendants in the present suit other than the assignees of that judgment (the bank and Mrs. Babb) and no excuse is shown why he did not implead them in that suit.
For the reasons stated, the majority are of the opinion that the motion for rehearing should be granted and the judgment affirmed; and it is so ordered.