241 F. 353 | 6th Cir. | 1917
This case was here' before (No. 2624) on appeal by complainants in the District Court (appellants also in this appeal) from an order of that court sustaining a demurrer to their bill. What took place at the hearing of the appeal is shown by the mandate o.f this court of July 3, 1915, which recites:
■‘•And counsel for appellants here and plaintiffs below having in oral argument admitted, and rightly, that the bill is too broad in averments and in scope of relief sought, insisting, however, that .plaintiffs were entitled to some, without defining wha.t, portion of the relief prayed — therefore, in order to afford plaintiffs opportunity to state such case as they shall be advised is open to them, and without intimating whether a case can in any form (and whether or not of representative character) be maintained in the court below for any of the objects stated in the bill, it is ordered that the decree below be and it is reversed, without costs; and, in accordance with the practice in situations similar to that of the plaintiffs (Wiggins Ferry Company v. Railway, 142 U. S. 396, 413-415 [12 Sup. Ct. 188, 35 L. Ed. 1055]; 3 Foster, Fed. Pr. 2136), the case is remanded with direction to permit plaintiffs to amend the bill— provided, the amount involved in the case be specifically alleged and appear to be sufficient for jurisdictional purposes.”
Theireupon, complainants having obtained leave in the District Court, filed an amended bill, differing from the original in no essential respect, and practically a copy of it, excepting the omission of the several prayers for injunction. The bill and the amended bill show: Complainants, three in number, several others intervening, are each the holder of a semi-tontine insurance contract or policy for the sum of $3,000, all of the policies having been issued at different dates by the Northwestern Mutual Eife Insurance Company, a corporation of Wisconsin ; under the plan of insurance, a policy-holder surviving its term and having paid all premiums is entitled to share in a fund created by the excess premiums paid over the cost of insurance and by the amounts paid in by policy holders who do not survive the terms of their respective policies, or who forfeit their policies or right of participation in the fund by nonpayment of premium.
The bill and amended bill, filed in behalf of complainants and of all others similarly situated, charged that the fund, amounting to millions, was held in trust by the company for all holders of similar policies, and that, in various ways alleged, the fund had been diverted by the company and its officers to purposes inconsistent with the tontine policy holders’ rights.
The prayer in both was for the intervention .of equity, because of no adequate remedy at law; for- an accounting; for a receiver of the fund, if it be found the trust should be terminated; and the original
Defendant moved to dismiss the amended bill on several grounds going to the merits of the case, as well as because of want of capacity in complainants to maintain the suit, and because the amended bill did not show that the sum sought to be recovered was sufficient to confer jurisdiction on the District Court. We are concerned now only with the ground last named; for, if the amount in controversy is insufficient to confer jurisdiction, it would be useless to express an opinion upon any other question in the case, whatever our views might be.
'The mandate on the first appeal gave permission to complaniants to amend their bill, and required them to specifically allege the amount involved. The amended bill did not set forth the amount claimed by each of the complainants, but alleged, as did the original bill, that the amount involved was a trust fund amounting to a certain number of millions of dollars.
We are warranted in believing that counsel for' complainants did not specifically set out the amount claimed by each of them, for the reason that, if he had set out the amount each of complainants, as well as each intervener, claimed the right to recover, it would appear that the claim of each was a sum less than sufficient to confer jurisdiction, and that, if the aggregate of the claims so shown would be an amount more than sufficient, he would nevertheless be confronted with well-established rules which forbid the aggregation of separate claims in such a case as this for the purpose of stating a sum in controversy sufficient for jurisdiction. But whatever his reasons were for not obeying the mandate, and assuming the fund to he a trust fund, and that complainants could bring an action for themselves and for all others similarly interested, still the conclusion docs not follow that the separate, distinct claims of each policy-holder can be added together for the purpose of making a sufficient amount.
The fact, if it be a fact, that this fund is a trust fund held by the insurance company for the benefit of these policy-holders, and that each has an interest in it, is not the test of right to make a jurisdictional case by aggregation of claims.
With respect to the rule and to -class actions, members of this court have said:
“The principle upon which such an aggregation can be employed as a test of jurisdiction is that the persons joining in the suit must have a common and undivided interest, not distinct interests, in the amount involved; still, this is not to say that, if the property involved is in truth separately owned and held, the parties may not constitute a class who may be joined for the sake of convenience and economy; it is to say that aggregation of their pecuniary interests is not permissible for making up the jurisdictional amount.”
From whát has been said it follows that the District Court had no jurisdiction over the case.
There is another reason, having to do with the application of rule 11 (202 Fed. viii, 118 C. C. A. viii) involving the question of the assignments of error on appeal to this court, why this appeal ought not to be
Ellison v. Straw, 119 Wis. 502, 506, 97 N. W. 168.
Pierce v. Equitable Life Assur. Soc., 145 Mass. 56, 61, 12 N. E. 858, 1 Am. St. Rep. 433.
Gibson v. Shufeldt, 122 U. S. 27, 39, 7 Sup. Ct. 1066, 30 L. Ed. 1088; Clay v. Field, 138 U. S. 464, 479, 480, 11 Sup. Ct. 419, 34 L. Ed. 1044; Davis v. Schwartz, 155 U. S. 631, 647, 15 Sup. Ct. 237; 39 L. Ed. 289; United States v. Freight Association, 166 U. S. 290, 311, 17 Sup. Ct. 540, 41 L. Ed. 1007; Troy Bank v. Whitehead, 222 U. S. 39, 40, 41, 32 Sup. Ct. 9, 56 L. Ed. 81.
Nolen v. Riechman (D. C.) 225 Fed. 812, 816.
Ellison v. Straw, 119 Wis. 502, 506, 97 N. W. 168.