TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 8, 2008
RE: Rule 22, N.D.R.Civ.P., Interpleader
Staff has prepared amendments to Rule 22 consistent with the federal form and style amendments. The amendments are intended make the rule more easily understood and to make style and terminology consistent throughout the rules. The amendments also aim to modernize the rule, removing references to obsolete authority and practices.
In the draft proposal attached, a subdivision relating to interpleader by substitution is removed. The subdivision was based on very old statutory language. Staff was able to locate only one North Dakota case that dealt specifically with interpleader by substitution, More v. Western Grain Co., 31 N.D. 369, 153 N.W.2d 976 (1915).
The More court indicated that the statutory substitution remedy was based on "the old equitable action of interpleader" and would apply only in a very narrow range cases. Consequently, the More court reversed the trial court's grant of interpleader by substitution. The More case is attached.
Unfortunately there are no minutes of the discussions relating to the 1957 Rules of Civil Procedure. It is possible that interpleader by substitution was retained because it was a unique remedy that in a rare case would allow a defendant to get out of an action entirely. The Committee may wish to discuss whether it should stay in the rule.