ON MOTION ROR REHEARING.
SMITH, P. J.Adverting again to that part of the record disclosing the pleadings and it will there be seen that the interplea alleges the existence of the attachment suit, the issue of the writ and the levy of the latter on certain specific personal property. This is followed with the further allegation that the attachment defendant was not the owner of the attached property but that the interpleader was such *278owner under a certain mortgage executed to her by tbe attachment defendant. Tbe answer of tbe plaintiff was that tiie mortgage under which the interpleader claimed the ownership of the attached property was fraudulent. The allegations of the answer were put in issue by the replication. Under the pleadings thus framed the attachment suit and the proceedings therein were admitted. There was no issue as to such suit and the proceedings therein up to the time of the levy of the writ.
The existence of the mortgage was admitted by the answer, but the allegation was made in that pleading that the mortgage was fraudulent. The interpleader’s prima facie case was established by the pleadings. The decisive issue made by the answer and replication was whether or not the mortgage was fraudulent. On this issue the onus pro-bandi was cast upon the plaintiff. If the evidence adduced by it was sufficient under this issue to carry the case to the jury its finding put an end to the controversy; provided, of course, the instructions were proper. What other issue could there be under the pleadings? The plaintiff’s attachment lien was in effect conceded by the interplea, but it was therein alleged that the mortgage lien of the interpleader was paramount to that acquired under the attachment. The validity of the mortgage was attacked by the plaintiff and that attack sustained by the jury.
Eut the interpleader insists that though her mortgage was fraudulent and void, that she was still entitled to recover unless the plaintiff proved that it was a creditor of the defendant. What concern was it of hers, if her mortgage was fraudulent and void, whether or not the attachment plaintiff was a creditor of the defendant? How could she be prejudiced or injured in any way by the failure of the attachment plaintiff to make such proof? The verdict of the jury was that the mortgage which she set up as the basis of her title to the attached property was fraudulent and gave her no *279claim or right thereto as against the attaching plaintiff.
We have been cited to no case where the issues made by the pleadings are as here, that holds in such case whether or not the attachment plaintiff is a creditor of the defendant is an issue that must be determined in favor of ,,such plaintiff, or else the interpleader will be allowed to recover, notwithstanding the fraudulent character of his title. No such issue is raised by any pleadings in the case, but on the contrary it seems to us that if an issue of that hind could have arisen in the case it was eliminated by the allegations of the in-terplea. It is quite difficult to see why the attachment proceedings were not properly before the court for the purpose of the trial, since the existence of the same was alleged in the interplea and admitted by the answer. But, however this may be, no good reason is seen why such proceedings should have been introduced in evidence in this case. There was no disputed issue requiring such evidence for its maintenance.
It may be that in that part of- the opinion in which it is remarked that “or, if so, the entire record in the attachment could be relied on as sufficient to show that fact” [i. e. that the attachment plaintiff was a creditor] “without the introduction of it in evidence,” went too far, but as this remark was not necessary to the decision of the case — mere obiter dicta — ■ we will so modify the opinion as to withdraw it therefrom.
The motion will accordingly be denied.