been duly indorsed to her. The premises con- | Adolph Langstead and that on September sidered plaintiff avers that as each of these 12th, there was served on the bank a written defendants claims some right or interest to notice signed by Adolph Langstead in words the certificate and to the money payable and figures as set out in the plaintiff's peti thereunder, and admitting that it (the bank) | tion. Bertha Langstead then denies each owes the sum of $2030 to some one on the and every allegation in the petition and decertificate but that in view of the premises it | nies that Lorenzo E. Anderson has any inis unable to determine to whom it shall be terest, title or right, or any color of title to paid, it therefore asks leave to pay the same the certificate of deposit or to the money due into court and that it thereupon be discharg- and payable thereunder. This answer of ed from any and all liability to the defend- Bertha Langstead further sets out that ants or either of them by reason of having Adolph Langstead had delivered the certifi issued the certificate of deposit and that the cate through the United States mail to the defendants be required to interplead for the bank on September 7th, 1912, indorsed as set sum involved, averring that the interplea out in the answer of Adolph and Margaret is brought without connivance or collusion Langstead and with the request that the with any of the defendants and solely in check be made payable to her (Bertha order that plaintiff may be protected from Langstead) but that plaintiff had refused to the danger of conflicting claims, the bank pay it or to issue the check or to turn over prays that it may be allowed to retain out of the certificate to her (this defendant). It the sum aforesaid its costs, including attor- is further set out in this answer of Bertha ney's fees, as to the court may seem proper. Langstead that the certificate had been duly On February 5th, 1913, defendants Adolph | indorsed to her and that she is lawfully enand Margaret Langstead filed their answer in which they aver that the "defendant" (meaning plaintiff) on the date named had issued the certificate of deposit described to him (Adolph Langstead), payable to him or to Margaret Langstead or either of them, and admitting that on Septemer 12th the notice set up had been served on plaintiff by him, deny each and every allegation of the petition and deny that Lorenzo E. Anderson has any title, interest or right, or any color of title in the aforesaid certificate of deposit or to the money or funds due or payable thereunder. It is further set out in this answer of Adolph and Margaret Langstead that on September 7th, 1912, Adolph Langstead had delivered to the plaintiff bank, through the United States postal service, by special delivery, the certificate of deposit described, duly indorsed, "Pay to the order of Bertha Langstead," signed, "A. Langstead," with the request that a cashier's check payable to the order of Bertha Langstead be made but that the plaintiff bank refused to pay the certificate

titled to the funds thereunder and it is lawfully her property and has been her property for a number of years and represents her savings; that the funds represented in this certificate were formerly deposited with plaintiff bank and with other institutions in her (Bertha Langstead's) name, but for the reason that she is aged and has been unable to personally attend to her business matters during the past years, the funds were deposited with the plaintiff bank in the names of Adolph and Margaret Langstead, but that she, this defendant, has never given or transferred the sum or funds to either of them, nor had they any authority to hypothecate, transfer or dispose of these funds but were simply holding the same in their names for the benefit and use of the defendant and that she (Bertha Langstead) is lawfully entitled to the funds represented. She prays that the bank be directed to pay into court the amount represented in the certificate and that the court determine the ownership of the fund and direct that the amount be paid to

her.

The answer and interplea of the defendant Lorenzo E. Anderson admits the issue of the certificate to Adolph Langstead and that notices were served on the bank as set out by it.

or to issue a cashier's check and refused to return the certificate to him (Adolph Langstead), although he had often demanded the same from the bank. This answer further sets up that the certificate was never delivered to Bertha Langstead and that the deFor his interplea defendant Anderson fendants Adolph and Margaret Langstead states that he is now and at all times menhave never parted with the title to the certifi- tioned was the owner of the certificate decate and that the sum still belongs to them, scribed, under a valid contract of pledge enand that they are lawfully entitled to the tered into between him and Adolph Langfunds thereof. Wherefore these defendants stead on June 8th, 1912; that under this pray that the bank be ordered to pay into contract of pledge Adolph Langstead is incourt the amount represented in said certifi- debted to him in the sum of $1831.60, tocate and that the court determine the owner-gether with interest thereon at the rate of ship of the fund and direct that the fund ve 6 per cent. per annum from September 12th, paid to the defendants Adolph and Margaret 1912; that this indebtedness arose under Langstead.

the following circumstances; that is to say, On the same date the defendant Bertha on May 22d, 1912, Adolph Langstead emLangstead answered, setting up that the ployed defendant as a broker to buy and sell certificate of deposit had been issued to certain stocks, bonds, grain and other com

1912, while the defendant Anderson was in possession of the certificate of deposit under the contract of pledge, the same being duly indorsed by said Adolph Langstead in blank, Adolph Langstead wrongfully and fraudulently and without Anderson's knowledge or consent obtained possession of the certifi cate, and having wrongfully and fraudulently written above his previous indorsement, which was in blank, the words, "Pay to the order of Bertha Langstead," Adolph Langstead delivered the certificate to the plaintiff bank with the request that it make out and deliver to him (Adolph Langstead) in place of the certificate of deposit a cashier's check payable to the order of Bertha Langstead, which the bank refused to do.

Setting out that he (Anderson), under a writ issued in a replevin action commenced by him, which action, it is averred, is still pending in the same court, had again secured possession of the certificate which had been wrongfully taken from him and that it is still in his possession, it is further averred that prior to September 7th, 1912, defendant had no notice or knowledge that any person, with the exception of himself, as pledgee, and Adolph Langstead, as pledgor, had or pretended to have any right or claim of any character whatsoever against the certificate of deposit. He therefore prays that the court order plaintiff, or the officer of the court, if the latter is in possession of the proceeds of the certificate at the time of final judgment, to pay over to the defendant Anderson, upon surrender of the certificate by him, and after paying the costs of the proceeding, the sum of $1831.60, together with interest on the sum at the rate of 6 per cent. per annum from September 12th, 1912, and that if the proceeds of the certificate be insufficient for that purpose that the money be applied to the payment of the debt as far as necessary and that the defendant Anderson may have judgment over against Adolph Langstead for the balance, if any, due him from Langstead together with costs and for other and further relief.

modities for Langstead and to enter into | correct; that on or about September 7th, contracts with other persons for the purchase and sale by said Langstead of grain, stocks, etc., and on that date Langstead, in order to secure this defendant against loss on account of the purchases and sales, delivered to this defendant a certificate of deposit in the sum of $500, Langstead then agreeing that he (Anderson), in order to protect himself against loss, might hold this certificate of deposit and collect the same when it should become due and apply the proceeds thereof in payment of any indebtedness of Langstead to Anderson arising as aforesaid and turn over the balance, if any, to Adolph Langstead; that on the date above named he (Anderson) entered upon the performance of the contract as broker for Langstead, made various purchases and sales for him in the performance of the contract and had laid out and expended for his use various sums of money which Langstead agreed to repay to Anderson, and agreed that Anderson might repay himself out of the certificate of deposit; that by reason of the premises, on June 8th, 1912, Langstead was indebted to Anderson in the sum of $109.25. Averring that an itemized account of these transactions was filed with the answer, Anderson continues that on June 8th, 1912, by agreement between himself and Langstead, the certificate of deposit for $500 was surrendered by Anderson to Langstead, and Langstead then deposited with the defendant another certificate of deposit in the principal sum of $2000, being the certificate of deposit mentioned. Averring that this is a negotiable promissory note of the bank and that the certificate of deposit is the one described in the petition, a copy of it being annexed, the answer avers that the certificate was pledged by Adolph Langstead in substitution for the previous certificate of deposit surrendered by defendant, and it was then and there agreed between defendant and Langstead that the certificate of deposit for $2000 (in point of fact the certificate is for $2030, being for the principal, $2000, and $30 interest from its date to maturity, no interest being payable thereafter), should be held and used by Anderson for a like purpose as he had held the first certificate of deposit, as a pledge, and that Anderson should collect the same at maturity, paying himself any money that might be due from Adolph Langstead to himself by virtue of the contracts. Setting out that under this Langstead had become indebted to him (Anderson) in the sum of $1831.60, and attaching an itemized account of the indebtedness, it is averred that Langstead had agreed to pay Anderson that amount and had agreed that Anderson might pay himself out of the certificate of deposit above mentioned. It is further set out that on September 12th, 1912, the account was rendered and stated by Anderson to Langstead and it was agreed between them that it was

The court ordered defendant Anderson, without prejudice to his rights to the same, to turn the certificate over to the sheriff, and that officer to turn it over to the clerk, who was directed to cash it, the bank being directed to pay it to the clerk, deducting from it $50 for costs incurred by the bank in the matter, and that the bank pay to the clerk the sum of $1980, and that thereupon the bank be discharged from any liability on the certificate, all of which things were done.

On June 11th, 1913, the defendants Adolph and Margaret Langstead answered the interplea of Anderson and after a general denial of the allegations in it, deny that on May 22d, 1912, Adolph Langstead employed Anderson as a broker to buy and sell certain stocks, commodities, etc., for and on his be

half and to enter into contracts with other The motion concluded with a demand for persons for the purchase and sale by Lang- a jury trial and that a jury be impanelled stead of stocks, grain and other commodities to assist in the trial of the cause. This mobut state that all transactions and the al- tion coming on for argument and being subleged or pretended sales or purchases were mitted to the court and taken under advisemade by and between Anderson and Adolph ment, was denied, defendants Adolph and Langstead without the intervention or as- Margaret Langstead excepting. sistance of any broker. It is further averred in this answer to Anderson's interplea, that the alleged contract of pledge and the transactions referred to in the interplea of Anderson and in the account filed therein were void and illegal and related wholly to wagering contracts, commonly known as option deals, between Anderson and Adolph Langstead in the market value of the stocks, grain and other commodities and were so understood and intended between Anderson and Langstead at the time of the contract; that none of the grain, stocks or commodities alleged to have been bought or sold were to be received, delivered or paid for but it was intended and understood by the parties that the pretended or fictitious purchases and sales should be settled upon the marginal difference between the fluctuation in the market price, and by reason thereof the alleged claim of the interpleader Anderson arises out of a wagering contract which is against public policy and illegal and void. This answer concludes with a prayer that the proceeds of the certificate deposited in court, be paid to the defendants Adolph and Margaret Langstead.

(It is as well to note here that the claim made in this answer, that the dealings between Adolph Langstead and Anderson were gambling transactions and void, was interposed for the first time in this answer, filed June 11th, 1913, the answers filed by these parties on February 5th in this case, and on April 25th, 1913, in the case of Anderson v. State National Bank et al., 198 S. W. 510, the case heretofore referred to, making no such plea.)

Thereafter this case and the one heretofore referred to, in which Lorenzo E. Anderson was plaintiff and is now respondent, were called for trial, whereupon Harry A. Frank, Esq., attorney for Adolph and Margaret Langstead, asked the court if they should try both cases that day, to which the court answered that they would "try them both together." Counsel for Adolph and Margaret Langstead made no objection to this, but counsel for respondent said: "Well, the record may show our objection to trying them both in that way, or consolidating the cases." To which the court answered: "I am not going to consolidate them, I am only going to try them together to save time. There is no reason why each case should be tried separately when they can be tried at one time. If you are ready to try them we will proceed." To which counsel for Mr. Anderson said: "We will proceed with the trial of both of them, your Honor." Counsel for Anderson then said that their theory was that their client being in possession of the certificate on the writ of replevin, the burden was on the other interpleaders and they should take the affirmative, to which the court said: "It Proceed with the does not matter at all. testimony," the court announcing that it would hear both cases together and apply the testimony to the case to which it belonged. Adolph and Margaret Langstead, proceeded Whereupon Mr. Frank, who was counsel for to put in his testimony, Mr. Albert E. Hausman representing Mrs. Bertha Langstead and apparently participating in the trial on her

behalf.

The correctness of the account filed by Anderson against Adolph Langstead is not disputed; in fact, on the evidence, it had be

The defendant Anderson filed a general denial by way of reply to the answers of come "an account stated." It shows a credthe defendants Adolph and Margaret Lang-it of the $500 certificate mentioned and then stead under their interplea. It does not appear that any reply was filed to the answer of Bertha Langstead, but the cause was tried as if such reply was in.

After the pleadings had been made up the defendants Adolph and Margaret Langstead filed a motion asking the court to submit the issues joined with interpleader Lorenzo E. Anderson to a jury for these reasons:

"1st. That the interpleader suit instituted by the plaintiff in this case has been sustained and the case no longer requires equity jurisdiction.

"2d. That the issues joined between defendants herein and interpleader Anderson are legal in

their nature.

"3d. That the issues joined between defendants herein and said Lorenzo E. Anderson raised questions of fact, which are required to be submitted to a jury.

"4th. That the court should impanel a jury to assist it in determining questions of fact."

entries of what are called "downs" and "ups" in grain and entries of sales and purchases of grain and stocks, the return of the $500 certificate and credit for the $2000 certificate, and shows a balance in favor of Anderson, of date September 12th, 1912, of $1831.60. The certificate was also introduced in evidence and is as set out in the petition. The other evidence in the case will be noted hereafter when we consider the assignments of error.

From a judgment in favor of Lorenzo E. Anderson for the amount of his account, as shown by the exhibit, and interest, together with costs, the defendants Bertha, Adolph and Margaret Langstead have duly appealed. Pending the appeal, which was lodged in our court February 10th, 1915, Bertha Langstead died July 15th, 1915, and on May 22d, 1917,

her death was suggested and the cause revived in the name of her administrator, who, entering his appearance, has joined in the presentation of the case through counsel.

Opinion.

The learned counsel for appellant has assigned 13 errors which we will consider in the order made.

[1] The action of the court in refusing to grant a jury trial and in refusing to impanel a jury and submit to the jury the questions of fact raised by the issues, is assigned for error.

While the action of Anderson against the bank was commenced as in replevin, and of course was an action at law, the answers and the action of the court turned it into a case of interpleader. This present action, in which the bank is the plaintiff, is clearly an action in interpleader.

It has been distinctly held by our court in Atkinson v. Carter, 101 Mo. App. 477, loc. cit. 483, 74 S. W. 502, that an interplea for a fund may be made by the answer, although the action was originally instituted as an action at law.

many decisions hold, as see, inter alia, Snell v. Harrison, 83 Mo. 651, loc. cit. 657; Keithley v. Keithley, 85 Mo. 217, loc. cit. 223; Bronson v. Wanzer, 86 Mo. 408, loc. cit. 414; Cockrell v. McIntyre, 161 Mo. 59, loc. cit. 67, 61 S. W. 648.

So there was no error in the action of the learned trial court in treating the case on the interpleader, as in equity and in refusing to refer any of the issues therein to a jury. It did not choose to and was not bound to do

that.

The second assignment of error is to the action of the court in trying, without the consent or authority at law, at the same time a replevin, which is an action at law, and an interpleader, wherein the issues were separate and distinct and different relief sought.

Third, that the court erred in compelling defendants (the Langsteads) to present their evidence before that of the interpleader Anderson, upon whom was the burden of proof. [2, 3] As to these two assignments of error, they are untenable. The action instituted as in replevin had, by the interpleader, lawfully ordered, become one in equity. We have set out the proceedings in the court as to that By numerous decisions of our courts, as see and it appears, first, that the court did not Atkinson v. Carter, supra, and cases there cit- consolidate the cases; second, that the aped at page 483, of 101 Mo. App., 74 S. W. 502, pellants made no objection whatever to the it has been held that when, in an action at trial of the two cases together. What oblaw, interpleaders are properly introduced, jection was made to that action was by that is, where it is a case warranting parties counsel for respondent and the court distinctto be required to interplead, and interplead-ly announced that the cases were not to be ers are ordered and had, that the action is then converted into one in equity. Indeed, it is elementary that cases of interpleader are peculiarly of equity cognizance, very frequently on the ground that by resorting to that proceeding, a multiplicity of actions is avoided. 2 Story's Equity Jurisprudence (13th Ed.) c. 20, particularly sections 806, 814 and 821. See also Harris Banking Co. v. Miller, 190 Mo. 640, loc. cit. 659, 89 S. W. 629, 1 L. R. A. (N. S.) 790; Thompson v. National Bank of Commerce, 132 Mo. App. 225, loc. cit. 228, 110 S. W. 681; Lavelle v. Belliu, 121 Mo. App. 442, loc. cit. 449, 97 S.

W. 200.

Our statute, section 1968, Revised Statutes 1909, provides that every issue of fact in an action for the recovery of money only, or for specific personal property, must be tried by a jury, unless a jury is waived or a reference ordered, and by section 1969, that "every other issue must be tried by the court, which, however, may take the opinion of a jury upon any specific question of fact involved therein, by an issue made up therein for that purpose, or may refer it, as hereinafter provided."

While section 1969 of our statutes, supra, provides that in equity causes, the court may take the opinion of a jury upon any specific question of fact involved, it is not compelled

consolidated but that he would hear the evi-
dence and consider it as applicable to the
There was no error in this
several cases.
and respondent, who made the objection, does
not now complain. Nor did the court com-
pel the Langsteads, defendants below, here
appellants, to present their evidence before
that of their codefendant, the interpleader
Anderson, now respondent. As far as the
record shows counsel for those defendants
voluntarily assumed the burden, if it may be
called so, of proceeding with their evidence
The order in which the
first, and did so.
testimony is to be introduced is largely in
the discretion of the trial court.

[4, 5] The fourth assignment of error is to the action of the court in overruling the objection of the defendants, the Langsteads, to the introduction and offering in evidence of certain exhibits. We find no error in this. Even if the evidence was improperly received, as this was a trial before the court, the contrary not appearing, it is to be assumed that he did not take into consideration any illegal or incompetent evidence. Nor does there appear to have been any grounds stated by counsel for the appellants to the admission of these exhibits. The objection made to the first of them was, "It is incompetent." The other exhibits referred to were offered and admitted over objections

them, all that counsel said was, "We object."ery had arrived, Langstead had retractThese so-called objections were fruitless. ed or sold out. As far as the stock transacThis assignment of error must therefore be ruled against appellants.