This сase is before the court at this time on the motion of the Corn Exchange National Bank and Trust Company of Philadelphia, Pennsylvania, hereafter termed the “bank”, for dismissal of defendant’s counterclaim interpleading the Bank.
The plaintiff, a citizen of Pennsylvania, instituted this action against the defendant, a corporation organized and existing under the laws of the State of Connecticut, to recover the amount due under certain insurance policies. Thе Bank, as assignee of these policies, has also demanded payment to it of the amount due. The defendant has counterclaimed, asking that the plaintiff and the Bank be required to interplead.
The Bank urges that the counterclaim for interpleader must be dismissed for several reasons, chief among which is that claimants sought to be interpleaded must be citizens of different states.
There is authority to the effect that an insurer who interpleads claimants to рroceeds of policies is “a real party in interest” for the purpose of determining
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jurisdiction on the basis of diversity of citizenship, and that an insurer of one state can interplead adverse claimants both citizens of the same other state. Hunter v. Federal Life Insurance Co., 8 Cir.,
Another argument urged in support of jurisdiction over the instant interpleаder is that such proceeding is ancillary to the original action and, therefore, within the court’s jurisdiction. If a court has jurisdiction of the case made by thе original complaint, it has jurisdiction of all germane ancillary proceedings. Brooks v. Laurent, 5 Cir.,
Rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following sеction 723c, however, affords ample authority for the instant interpleader, even if the requirements of the Interpleader Act of 1936, c. 13, § 1, 49 Stat. 1096, 28 U.S.C.A. § 41(26), are not sаtisfied.
Rule 22 provides that: “(1) Persons having claims against the plaintiff may be joined as defendants and required to inter-plead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or thаt the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleаder by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20.
“(2) The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided by Section 24(26) of the Judicial Code, as amended, U.S.C., Title 28, § 41(26) [28 U.S.C.A. § 41(26)]. Actions under that seсtion shall be conducted in accordance with these rules.”
The current weight of authority is to the effect that the interpleader Act of 1936, supra, did not аbrogate the right to bring suits of interpleader under the general provisions of Section 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1), which confers general jurisdiction over actions based on diversity, alienage or federal question. Mallers v. Equitable Life Assur. Soc., 7 Cir.,
Rule 22(1) adopts the jurisdictional rule for ordinary аctions, affording, as stated in paragraph (2) a remedy in addition to but not superseding the Interpleader Act of 1936, supra. Thus, altho under the Interpleader Act there must be diversity between the claimants, such is not required under paragraph (1) of Rule 22. In other words, under Rule 22 it is sufficient if diversity exists between the inter-pleader and the claimants. This does not overlook Rule 82 which says that the Rules of Civil Procedure shall not extend or limit the jurisdiction of the District Courts. The Court has jurisdiction of the original bill. Allowance of the cross-bill does not *157 extend the jurisdiction hut neither can it operate to limit or circumscribe the Court’s authority to permit the defеndant to dispose of the entire matter in the instant proceeding.
The Bank further contends that the counterclaim for interpleader must be dismissed because the Bank, as assignee, is the only one who can bring suit against the defendant. The jurisdiction of this court to entertain a bill of interpleader is not dependent upon the merits of the claims of the parties interpleaded. Metropolitan Life Ins. Co. v. Segaritis, D.C.,
The final objection, that the counterclaim must be dismissed because the complaint does nоt set up any cause of action against the defendant likewise goes to the merits and therefore, is not to be considered at this time. The sufficiency of the pleadings is not pertinent to the instant motion. Two parties have made demands upon the defendant for payment of the amount due under certаin insurance policies. In such a circumstance, the defendant, under Rule 22, is entitled to counterclaim for interpleader. There is no statutory jurisdictionаl obstacle in the way of such a counterclaim where the defendant is a citizen of a different state than that of the claimants. Further considerations are unnecessary and impertinent to the instant motion. The opinion decides that the Bank can be and was properly inter-pleaded, and decides no more.
Motion to dismiss counterclaim for inter-pleader is denied.