ON PETITION EOR REHEARING.
(October Term, 1897.)
Potter, Chief Justice.The defendant in error applies for rehearing as to that portion of the judgment of this court relating to interest. We held that it was erroneous to include interest in the judgment, and the trial court was directed to enter judgment in favor of defendant in error for his claim without interest.
The defendant in error was plaintiff below, and brought his action against the First National Bank of Nock Springs upon certain certificates of deposit issued by said bank to the plaintiff in error, and which by indorsement and delivery for value, had come into the possession of defendant in error. The defendant bank, without answering, filed an affidavit setting forth that one M. Kinney (plaintiff in error) without collusion with the defendant makes a claim to the certificates of deposit, and the moneys due thereon, and that defendant is ready to pay the same as the court may direct; and prayed that upon compliance with such order as the court may make in the premises it should be discharged from all liability to the parties.
*37The court, thereupon, ordered that the bank safely keep the sum of money mentioned in the petition as due' on February 12, 1891, viz., §457.77, and interest thereon from that date, subject to the further order of the court; that the said Kinney appear within thirty days, and maintain or relinquish his claim against the defendant, or be forever barred of all claim in respect to the said certificates of deposit.
The affidavit was filed and the order made in pursuance of the provisions of the code (Sec. 2405, Rev., Stat.), which are as follows: “Upon affidavit of a defendant before answer, in an action upon contract, or for the recovery of personal property, that a third party, without collusion with him, has or makes a claim to the subject of the action, and that he is ready to pay or dispose of the same as the court or judge may direct, the court or judge may make an order for the safe keeping, or for the payment or deposit in court of the subject of the action, or the delivery thereof to such person as the court or judge may direct, and also an order requiring such third party to appear in a reasonable time and maintain or relinquish his claim against the defendant; and if such third party, having been served with a copy of the order, by the sheriff or such other person as the court or judge may direct, fail to appear, the court may declare him barred of all claim in respect to the subject of the action against the defendant therein; but if he appear, he shall be allowed to make himself defendant in.the action, in lieu of the original defendant who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit, or delivery thereof.”
The plaintiff in error appeared and filed an answer to the original petition, none other being filed by the plaintiff. Such original petition was filed February 16, 1891, and was in the usual form for recovery upon commercial paper. The prayer was for judgment against the defendant bank for $457.77, the amount due February 12, and *38interest thereafter. The answer of plaintiff in error denied that defendant in error was the owner of the certificates. The defenses therein contained, which were interposed for the purpose of impeaching the transactions out of which arose the transfer of the certificates by Kinney, are stated in the former opinion.
A reply was filed in which defendant in error, after denying the allegations of the answer, prayed, “as prayed in the petition herein.”
The order of the court that the bank retain the money due upon the certificates, was evidently deemed sufficient to secure the safety of the fund, and had the same effect as if the money had been deposited in court or with some other person, except possibly to delay the time of the final discharge of the bank.
From a journal entry brought into the record it seems that at the trial judgment had been orig'inally rendered against the bank, from which the latter brought error to this court, and upon stipulation an order was entered here that the judgment be vacated, and such a judgment rendered against the substituted defendant as shall seem proper to the district court. Thereafter the judgment was rendered which is involved in the present proceedings in error. The court found for the defendant in error (plaintiff below), generally, and that he was the owner of the certificates of' deposit, and that there was due from the substituted defendant upon the causes of action set forth in the'petition $652.89. Judgment for the amount was awarded plaintiff against the substituted defendant; the bank was ordered to pay the plaintiff the sum of $457.21, and the balance, $195.68, and the costs amounting to $121.95, remained as a judgment against the substituted defendant.
The question in the case is not, as counsel for defendant in error seems to consider, whether Kinney would have been under any issue which might have been presented bound to respond for interest. It is whether under the issues in the present case as they were framed and tried between these parties interest was recoverable.
*39The proceeding allowed by the code is a substitute for the equitable action of interpleader. The authorities hold that it is cumulative and not exclusive. The code proceeding is not authorized until a suit has been brought against the person holding the property or fund. The •bill of interpleader in equity might be brought by such person in the absence of any suit against him, to compel the adverse claimants to interplead and settle the matter in a controversy between themselves. In such a suit, after the order had been made requiring the claimants to appear and interplead proper issues by pleadings would be framed, and upon those issues their respective rights would be determined.
The code contemplates in its effect and consequences the same thing when its provisions in that respect are invoked. No statutory provision, however, is made as to the course to be pursued in the framing of the issues subsequent to the order against the third party — the adverse claimant. It is said in Moak’s Van Santvoord’s Pleadings (3d Ed.), p. 358, that no case has been found upon the question, but the author’s view is that, analogous to the practice in connection with the bill of interpleader, the plaintiff should be allowed to serve an amended complaint alleging also the facts occurring after the former complaint. The amended complaint would contain essentially the allegations of the former, and further allegations showing the interpleader proceedings. The author’s view is that such amended complaint should then demand judgment, that the plaintiff is entitled to the fund deposited or held under the court’s order, or the property specified in the complaint, and that he recover costs. After that work was published, the precise question was decided by the Supreme Court of New York, under a similar statute. The trial court had overruled a motion of the .substituted defendant to dismiss the plaintiff’s complaint (the one originally filed), on the ground that it did not state any cause of action against him. The Supreme Court held the ruling to be error. The court said, “Notwithstanding such appearance and submission to the juris*40diction of the court, the defendant, Lawrence, was not debarred the right to raise at the trial the question that the plaintiff’s complaint did not state any cause of action, against him, and that, admitting every fact therein stated to be true, no judgment could be obtained in the action against him. This objection was clearly well taken, and the motion to dismiss said complaint was erroneously overruled.” Wilson v. Lawrence, 8 Hun., 593, 596. In a case somewhat analogous the same view seems to have been taken by the Supreme Court of Kansas, in Furrow v. Chapin, 13 Kan., 107, although the claimant was not substituted for the original defendant, but merely made an additional party defendant. Judgment was rendered against both defendants, a sheriff and plaintiff in execution. It was held erroneous because the petition had not been amended after the introduction of the new party, and nothing was alleged as against him. In the case at bar, trial was had upon the original petition without objection. Had there been an amended petition, however, the issues would have been the same as those upon which the cause was tried. What were those issues ? It is probably true, as stated by counsel, that the cause of action remained the same. It was held in Ohio under the same code provision that the case after the substitution of the new party defendant remained a civil action, and the parties were entitled to a trial by jury. Maginnis v. Schwab, 24 O. S., 336. That case did not involve the question before us, but its facts illustrate the issue presented in such a proceeding. The suit was upon a promissory note for $1,704.88. The original defendant paid $1,250.00 on the note, and then filed an affidavit of inter-pleader under the code, stating that certain third parties claimed the balance, $454.88. The money was paid by him into court, and upon order of the court the third parties named were made defendants, appeared and filed an answer and cross-petition. The original petition does not seem to have been amended, nor any objection made to it. A verdict was returned and judgment rendered in *41favor of the plaintiff for the precise amount deposited in court, $454.88, and no interest was included."
It is conceded in the case at bar that the bank was not liable for interest after it retained the money by order of the court. The fund is treated as in court and subject to its order. The issue between the plaintiff and substituted defendant was clearly the ownership of the certificates, and as growing out of such ownership the right of either party to the fund which they represented. The question was which party is entitled to recover of the bank. The bank placed itself in a position to defeat any further obligation than to pay the amount deposited with itself to the one entitled to receive it. No other issue was presented. Kinney was not sued upon his indorsements nor for damages for withholding the money. He did not withhold the money. He was not sued upon the certificates. The bank who had issued them was sued upon them. The court was called upon to determine, not whether Kinney was liable to Hynds upon the certificates, but to whom was the bank liable upon them. A liability to one of the two was admitted by the bank. The amount of the liability was also admitted, and that amount in money was placed subject to ’the disposition and order of the court. The extent of the bank’s liability was then absolutely determined. Nothing remained undetermined but the question as to the party entitled to recover. Either Kinney or Hynds, as owner of the certificates, had a right of recovery against the bank upon them. As against both of said parties the bank had in pursuance of the statute limited its liability to the amount held under the court’s order. It is not possible to conceive of any other issue in the case between Kinney and Hynds than the one involved in the question which one is entitled to recover upon the certificates against the maker who was originally sued. As the maximum to be recovered was already settled and fixed by the order of court, it is not perceived how a judgment for any further sum can be awarded.
*42None of the cases cited by counsel as being analagous seem to support his position. The case of Sleppy v. Bank of Commerce et al., 17 Fed., 712, was a suit to recover the possession of a certificate of deposit, and damages were allowed for its detention.
In Sibley v. Equitable Assur. Soc., 3 N. Y. Supp., 8, the interest held recoverable against the insurance company was upon the sum due under a policy which it had retained without commencing an action of interpleader, and was for the interest up to the time when the money was deposited with a receiver by order of court. It was not held that any interest after such deposit was recoverable against any party to the action.
In Converse v. Ware Sav. Bank, 152 Mass., 407, although a claimant was summoned, the bank remained a party, and retained the money evidently without order of court.
In Kenton Ins. Co. v. Bank, 19 S. W., 841, the bank, it seems, did not stand as an indifferent custodian, but was contesting the right of the plaintiff to the money.
No case has been called to our attention which holds that interest against the substituted defendant in a case like the present is recoverable, and there is no principle of law which authorizes a judgment therefor.
Rehearmg denied.
Corn, J., concurs. Knight, J., did not sit in this case.