The opinion of the court was delivered by
Ross, J.If the facts disclosed in the orator’s bill, were not sufficient in law to entitle it to invoke the power of the court of chancery to compel the defendants to interplead and settle their rights to the $ 1,100 which the orator held, the court of chancery should have adjudged the bill insufficient on the demurrer of defendant Brown, and have dismissed the same. This would have remitted the orator and defendant Brown to the suit at law already pending in favor of Brown against the orator. The court overruled the demurrer, and decreed that the orator’s bill of interpleader be sustained, and, without defaulting the defendant railroad company, or directing any issue to be found and tried between the defendants, decreed the fund in the hands of the orator to be paid to the defendant Brown. Prom this decree, the orator brought the case by appeal to this court. Prom this statement several irregularities are manifest. When the court of chancery sustained the orator’s bill as a bill of interpleader, it should have ordered the orator to pay the fund into court, allowing the orator its costs out of the fund, and have dismissed the orator from being a further party to the proceedings. If the case was then ripe *641for a hearing between the dofeedants, the court should have proceeded to have heard the matter at issue between them, and made a decree accordingly. If, as was manifestly the fact, the case was unripe for a hearing between the defendants, the court should have ordered an issue formed between the defendants, and when formed, and the proof adduced on each side, should have heard the defendants on that issue, and made a decree settling their respective rights to the fund. The orator would have no interest or occasion to appeal from the decree ' of .the court disposing of the fund. We have in this case, this anomalous condition of things ; a decree sustaining the orator’s bill as a bill of interpleader, just what the orator prayed for, and the orator appealing from that decree; the bill sustained as a bill of interpleader; no issue joined by the defendants, and no hearing on the question at issue between them ; and a decree awarding the fund to be paid to defendant Brown. We think it is entirely clear from the statements in the bill, that the matter at issue between the defendants, was unripe for hearing, and that the decree as made up, is a very unripe decree, and the case irregularly brought to this court. Doubtless, most of this anomalous condition of things, was occasioned by the failure of the defendant railroad company’s solicitor to enter his name on the docket. It is stipulated that he appeared, but did not answer nor demur, but confessed the allegations in the bill. He might well confess the allegations in the bill, so far as the orator was concerned, if he was willing that the bill should be sustained as a bill of interpleader ; but that was not a confession that it thereby relinquished its claim upon the fund, and that defendant Brown might take the same. Until the inter-pleader was awarded, the railroad company was defendant to the orator, and not to its co-defendant, Brown. If after the court had ordered the defendants to interplead, and had fixed a time in which they should severally answer and set forth their respective claims to the fund, the defendant railroad company had failed to appear and put in its answer, that might have been treated by the court as a confession that it abandoned the claim it had before made to the fund, and have warranted a decree in favor of defendant Brown. The court in the same breath, as far as can be *642gathered from the decree, decreed that the defendants should interplead, and that the pleading of the defendant railroad company should not be heard, because its solicitor had not entered his name on the docket. All this was premature, and the case irregularly brought here by the appeal of the orator. We might dismiss the appeal because it is irregularly brought here ; but that would not do justice between these defendants. We are entirely satisfied that the court was correct in sustaining the bill as a bill of interpleader. The orator is a mere stakeholder, claiming no right to the fupd. The defendant railroad company had paid the fund into the bank, to have the bank pay it over to Brown. Before Brown called for the fund, the railroad company had been enjoined from constructing its road on Brown’s land, and thereupon forbade the orator to pay the fund to Brown, and claimed he was not entitled to it. From the facts stated in the orator’s bill, it is not entirely clear what may be the respective rights of the defendants to this fund. From the affidavit filed by the railroad company on its motion to have the decree reversed, pro forma, and sent back, the right of Brown to a portion of this fund may, at least, be doubtful. We therefore reverse the decree of the court of chancery, pro forma, and send the case back to that court, with a mandate to proceed with said cause as a bill of interpleader.