McNamara v. Provident Sav. Life Assur. Soc.

PARDEE, Circuit Judge

(after stating the facts as above), i. Judge Parlange, in the circuit court, overruled the demurrer on the ground that the bill, if not good as a pure bill of interpleader, was certainly good as a bill in the nature of a bill of interpleader, and showing equities in favor of complainant entitling it to relief; citing Groves v. Sentell, 153 U. S. 485 , 14 Sup. Ct. 898, 38 L. Ed. 785 , and other authorities. This ruling is fully supported by the adj’udged cases cited, and, so far as the demurrer to the bill is concerned, Judge Parlange’s opinion, found in the record, needs neither to be amplified nor supported.

2. It is not contended in this court that the decree pro confesso against the McNamara defendants was erroneously taken, nor that said defendants were not actually in default. “If one defendant in a bill of interpleader establishes his title and the other make's default, the court will decree payment to the former, and a perpetual injunction against the latter.” 2 Daniell, Ch. Pl. & Prac. (5th Ed.) 1494, note. To the same effect see.2 Beach, Mod. Eq. Prac. § 638. That this is correct practice is declared in many adjudged cases. See Richards v. Salter, 6 Johns. Ch. 445 ; Plaster Co. v. White, 44 Mich. 25 , 5 N. W. 1086 ; Badeau v. Rogers, 2 Paige, 209 .

Richards v. Salter was decided by Chancellor Kent on a review of the practice and authorities, and we quote, as conclusive on the subject, from his opinion, as follows:

“The defendant S. has answered, and set forward his right and title to the money, and the other defendants have not supported, their claim. Upon this bill the question of right may be decided in favor of one defendant against *913 another. If one defendant establishes a title, and the other makes default the court will decree payment to the former, and a perpetual injunction against the latter. This was so done in Bolton v. Williams, 4 Brown, Ch. 297; and also in Hodges v. Smith, decided by Lord Kenyon as master of the rolls (1 Cox, Ch. 357, and cited by Sir William Grant in Angell v. Hadden, 10 Ves. 203). The defendant S. is entitled to the fund, subject to the plaintiff’s costs; and the other defendants, who have set up a groundless claim, and by that means compelled the plaintiff to resort to his bill of inter-pleader, and put the defendant S. to the necessity of defending this suit, ought to pay to the defendant S. his costs of this suit, as -well as the costs of the plaintiff, which the defendant S. is, in the first instance, obliged to pay out of the fund in court.’’

The defendant Loeb asserted title in his answer, and established the same by full proof, and under the correct practice was entitled to a final decree, and no cross bill against the defendants in default was necessary. And this seems clear when we notice the fact that said defendants neither asserted title to the fund in court nor denied Loeb’s title to said fund. We note, further, that said defendants so being in default, and necessarily so adjudged by the court, are in no position to complain of a decree in Loeb’s favor. If they are not to receive the fund nor any part thereof, it is no concern of theirs as to how it is awarded.

3. In ruling on the demurrer, it was not necessary to determine whether the bill was a pure bill of interpleader or a bill showing equities in the nature of an interpleader; but, to review the allowance to the complainant of a solicitor’s fee, it is necessary to go further, and consider the exact character of the bill. The bill was intended to be and it contains all the allegations necessary for a pure bill of interpleader, and if it is not such a bill it is because the complainant, notwithstanding his allegations to the contrary, has an interest in the subject-matter of the suit. No other objection has been presented. The contention is that as the complainant has not paid in the full $10,000 named in the policy, but has retained the sum of $337.5°, the amount due for unpaid premiums as stipulated in the policy, the amount so retained is in contest, and to that extent the complainant is interested in the subject-matter of the suit. The policy expressly stipulates that on the death of Robert McNamara the insurance company shall pay to the legal representatives or assigns of said McNamara the sum of $10,000, less any indebtedness on account of the policy. On the death of McNamara $337-5° in unpaid premiums became due on account of the policy, and thereby the insurance company was bound by its contract to pay to the legal representatives and assigns of McNamara the sum of $10,000, less said premiums, to wit, $9,662.50; and this sum, still following the terms of the policy, became due on the 18th day of February, 1901, 90 days after proof of death was received, and it, together with 6 per cent, interest thereon from that day to the filing of the bill, was paid into court. As the contract was specific, and the amount due was certain (and that is always certain which can be made certain), there was no room for any contest as to the amount due under the policy, and any interest of the complainant in the subject-matter of the suit arising from the source indicated is too remote to be seriously considered. Just as well might we consider that the complainant *914 was interested in the subject-matter of the suit because the complainant only paid in 6 per cent, interest from February 18, 1901, instead of from November 19, 1900, the day proofs of death of McNamara were furnished, or even from October 23, 1900, the date of McNamara’s death. The interest in the subject-matter of the suit sufficient to deny the complainant the right to bring a strict bill of interpleader must be a substantial, contested right; otherwise, no such bill, however meritorious the case, could ever be entertained. In this case, neither by the bill nor by any legitimate inference to be drawn from the evidence, does it appear that the complainant had any substantive or substantial interest in the subject-matter of the suit. Where no such interest is shown, and the complainant’s acts in the premises have been free and above board, and conducive to equity, a solicitor’s fee may be allowed. Groves v. Sentell, supra; Lottery Co. v. Clark (C. C.) 16 Fed. 20 ; Trustees v. Greenough, 105 U. S. 535 , 26 L. Ed. 1157 ; Spring v. Insurance Co., 8 Wheat. 268 , 5 L. Ed. 614 ; Daniel v. Fain, 5 Lea (Tenn.) 258.

4. We understand that part of the first paragraph of the decree appealed from, which declares that “no demurrer, plea, disclaimer, or answer has been filed to said bill of complaint by any of the defendants herein other than said Ernest M. Loeb, to mean that the McNamara defendants filed no valid and sufficient demurrer, plea, disclaimer, or answer ,to said bill. The demurrer interposed by said defendants had been properly overruled, and for the purpose of the decree to be rendered was of no more force or effect than if it had never been filed. Besides, the recital in question was wholly unnecessary, and, if erroneous at all, it was harmless error.

We find- the decree appealed from was in all respects in accordance with equity rules and practice, and the same is affirmed.