dissenting: In the answer
filed by appellants, no objection was interposed as to the propriety of the complaint in interpleader. The answer admits paragraphs 1, 2, 3, 4, 5, 6, 8 and 9 of the complaint, and neither admits nor denies paragraphs 7, 10 and 12 thereof. Paragraph 10 of the complaint avers that plaintiff is uncertain as to the person or persons to whom it is indebted by reason of the account in dispute, and that it is anxious to have the court determine who is entitled to the fund. Paragraph 12 alleges that plaintiff has not colluded with any one or more of the defendants touching the matters in controversy, nor is it in any manner indemnified. This paragraph also avers that the complaint was not brought at the request of any defendant. Paragraph 1 of section 40 of the Civil Practice Act (par. 164, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. § 104.040]) provides that general issues shall not be employed, and that every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates. Paragraph 2 of the same section declares that every allegation, except allegations of damages, not explicitly denied, shall be deemed to be admitted, unless the party shall state in his pleading that he has no knowledge thereof sufficient to form a belief, and shall attach an affidavit of the truth of such statement of want of knowledge, or unless the party has had no opportunity to deny. Paragraph 3 provides that denials must not be evasive, hut must fairly answer the substance of the allegation denied. The answer does not state that the pleader “has no knowledge thereof sufficient to form a belief.” Under these provisions of the Civil Practice Act that part of the answer which neither admits nor denies the allegations of paragraphs 10 and 12 of the complaint, in effect, admits such allegations. The parties proceeded before the chancellor without presenting any point as to whether the complaint in interpleader was proper. They submitted the case on the merits. The proper procedure is to first determine whether an interpleader is appropriate. If it is not, then the interpleader is dismissed and the parties are left to their several actions. If the inter-pleader lies, the approved practice is to enter an interlocutory decree providing for the dismissal out of the cause of the plaintiff, and the depositing of the funds in dispute with the clerk, or with some other depository. The remaining parties then interplead and establish the issues on which the cause is to be tried. Here the procedure was irregular in that no interlocutory decree was entered. The informality cannot, however, be taken advantage of by any of the parties for they all participated therein. The fact that the fund was not deposited is immaterial as no question is raised by anyone as to the availability of such fund when the rightful owner thereof is determined. The case was submitted on the merits and all points were duly considered by the chancellor, who saw and heard the witnesses. The decree should he affirmed.