Opinion
No. 72-282
Decided July 17, 1973. Rehearing denied August 8, 1973.
Estate's right to certain interpleaded funds having been affirmed upon appeal, estate sought to recover from other claimant to the funds the interest on them from the date of the trial court's entry of judgment to the date it received the funds. From trial court's refusal to award such interest, the estate appealed.
Affirmed
1. INTEREST — Interpleader Action — No Supersedeas Bond — Appellant — Not Required — Pay Interest — Funds Held by Court. At no time during appeal of interpleader action concerning funds deposited with court was there a supersedeas bond executed by the appealing party; thus, since the appellee could therefore have, at any time, executed on its judgment and collected the funds, the trial court properly refused to require the appellant to pay interest on the funds.
Appeal from the District Court of the City and County of Denver, Honorable Merle R. Knous, Judge.
Brenman, Sobol Baum, Stephen N. Berkowitz, for plaintiff-appellee.
John L. Griffith, Mary C. Griffith, Richard D. Gilson, for defendant-appellant.
Division II.
Albert Lee Ritter died intestate in 1965, having a savings account at Empire Savings Building and Loan Association which the special administrator claimed was an asset of the estate. Mary E. Ritter, a relative by marriage, who was in possession of the passbook, filed this action claiming that she was the donee of an inter vivos gift of the savings account. After Mary filed the action, the savings and loan moved to interplead and was dismissed with prejudice, the existing balance of the savings account having been deposited in the registry of the district court.
Trial in the district court resulted in a judgment that the estate was entitled to the funds. That judgment was affirmed by this court in Ritter v. Empire Savings Building Loan Association, 29 Colo. App. 124, 478 P.2d 685. In subsequent proceedings, the trial court denied the estate's motion for interest on the funds deposited in court. The estate has appealed that order. We affirm.
The estate claims that, since Mary was unsuccessful in her appeal, it is entitled to recover from her interest on the interpleaded funds from the date of the trial court's entry of judgment to the date it received the funds. The estate relies on C.R.S. 1963, 73-1-2, which provides in part:
"Creditors shall be allowed to receive interest, when there is no agreement as to the rate thereof, at the rate of six per cent per annum . . . on any judgment recovered before any court or magistrate authorized to enter the same within this state, from the date of entering said judgment until satisfaction thereof be made . . . ."
This statute, which allows judgment creditors to receive interest, does not apply to a judgment determining the right to funds paid into court. In an interpleader action, the judgment is against the fund, not against the other parties. See Winterton v. Van Zandt, 397 S.W.2d 693 (Mo.App.).
[1] The estate in support of its position, cites Western Bank v. Morrill, 246 Ore. 88, 424 P.2d 243, and Land Clearance for Redevelopment Authority v. Zitko, 386 S.W.2d 69 (Mo.), which held that an unsuccessful litigant on appeal from a judgment concerning interpleaded funds became liable for interest from the date of entry of judgment. These cases are not in point since the appealing party had executed a supersedeas or appeal bond staying the proceedings. At no time during these proceedings was there a supersedeas bond executed by the appealing party. Thus, the estate was not prevented from executing its judgment and collecting the deposited funds from the court. Accordingly, the trial court properly denied the estate's motion for interest.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.