delivered the opinion of the Court:
A motion was filed by plaintiff to dismiss this appeal for the reason that the judgment appealed from had not become final at the date the appeal was taken. The defendants took the present appeal on the same day that the order was entered, without waiting for the expiration of the ten days within which they were permitted to apply for a restraining order under the terms of the decree. It is insisted by counsel for plaintiff that this court is without jurisdiction to consider this appeal for the reason that the decree of the court below, by its terms, did not become final until the 23d day of December, 1907, ten days after the appeal was taken. It is urged that, on the date the appeal was taken, the purpose of the decree was subject to be defeated by the action of the defendants, and that the decree was of no effect whatever until the expiration of the ten days, when it would, by its terms, become absolute. It is well settled that an appeal will not lie from an interlocutory order, but we do not regard the decree before us as such an order. Here,, the condition was one which was available only to the defendants, and, we think, it was within their power to either accept the condition which would have involved further proceedings in the trial court, or prosecute their appeal. Having adopted the latter course, it was equivalent to a *458waiver of any further right to avail themselves of the condition contained in the decree, and had the effect of making the decree at once final and absolute.
It is urged by counsel for defendants that the bill filed by plaintiff in this cause is in effect a bill of interpleader. With this contention we cannot agree. In accordance with the privilege reserved to plaintiff in the trust agreement, plaintiff gave notice of its desire to retire from the trusteeship, and requested the depositors to select its successor. The depositors selected the New York Trust Company. Plaintiff was confronted with defendants’ notice to the effect that they had a claim against the stock held by it. This proceeding was brought by the plaintiff, with notice of the conflicting claims, to be relieved of the trust, and instructed as to the manner in which it should turn over the stock to its successor, the New York Trust Company. No attempt was made by defendants to compel a distribution of the stock. They presented no objection to the transfer of the stock to the New York Trust Company, except to insist, in their cross bill, that plaintiff should not be relieved of any liability imposed upon it by virtue of said notice.
Plaintiff was not in a position to interplead. It was under a contract with the depositors of the stock, and it could not interplead them and defendants, who claimed under an antagonistic and alleged paramount title. Pom. Eq. Jr. 3d ed. secs. 1326, 1327. The rule applicable to this case, touching the -question of interpleader, was announced by this court in Richardson v. Belt, 13 App. D. C. 200: “An essential foundation of the equity of interpleader is, that the party seeking the relief must not he under an independent or special liability to one of the claimants (Adams, Eq. 204; 3 Pom. Eq. Jur. sec. 1327). Where there is an independent liability of the party seeking the relief to one of the several defendants, arising out of the relations subsisting between them, or upon a special contract creating, for example, the relation of bailor and bailee, landlord and tenant, or creditor and debtor, there can be no interpleader, unless it be made to appear that others have acquired a claim of title or interest, derived under the said lia*459bility.” The claim here asserted was not derived from the contractual relation existing between plaintiff and the depositors of the stock. The claim affected the title to the stock, for the return of which plaintiff was bound by its contract to one of the parties.
It is clear that defendants’ claim affected vitally the depositors of the stock, who held plaintiff’s certificates therefor. They could not be forced to try title upon the mere answer of defendants. If defendants were anxious to try title, which seems doubtful, they should have proceeded in a proper manner to have brought the holders of the trustee’s certificates before the court. Having failed in this, if they were in danger of being damaged by the removal of the stock to New York,—which is not clearly apparent to us,—they could have accepted the invitation of the court, and asked for a restraining order to prevent the removal of the stock from the jurisdiction of the court. This they refused to do.
We fail to discover wherein the rights of defendants have been prejudiced by the action of the court below. There was no error. The decree is affirmed with costs, and it is so ordered.
Affirmed.
An appeal to the Supreme Court of the United States was allowed June 9, 1908.