103 F. 515 | U.S. Circuit Court for the District of Kentucky | 1900
On the 14th day of July, 1885, James S. Phelps procured a certificate of membership (otherwise a policy of life insurance) in the complainant association, and at stated periods .thereafter paid the dues and the mortuary calls or premiums thereon as stipulated in the certificate. This continued until about January, 1900, a period of nearly 14’- years, and for that length of time, he continuously paid the premiums for carrying the risk. Pursuant to the stipulations of the certificate or policy, as the insurer claimed, the mortuary calls were increased to a higher rate, and probably fixed upon a different plan than the insured thought was permitted by the terms of the certificate; and after the date last named he refused to pay the increased rates, and on the 28th day of February, 1900, instituted an ordinary action at law in the state court to recover the entire amount of the calls or premiums so paid by him, together with interest thereon. Upon a service of process, which the state court considered valid and sufficient, judgment in that action- was rendered in the plaintiff’s favor on May 19, 1900, for the entire claim then ascertained by the court to be the sum of $2,360, for which amount, with interest from that date, and the costs of the proceeding, judgment was then rendered against the association. It will be seen that this judgment allowed to the insurer no compensation whatever for the risk it had taken and carried for the 14-J- years, during which the certificate or policy had been in force, and the premiums and calls had been paid. On the 21st day of May, 1900, an execution of fieri facias was issued upon the judgment, and was' placed in the hands of the sheriff of the proper county, who subsequently, namely, on June 12, 1900, returned the writ, in substance, “No property found.” More than 60 days after the judgment, to wit, on the 4th day of August, 1900, the plaintiff in that action filed therein an amended and supplemental petition seeking to obtain satisfaction of the judgment by subjecting the assets and credits of
Whether the fund raised by the complainant from mortuary calls and premiums through its manner of insuring is a trust fund for all its members and beneficiaries, which cannot be diverted to the benefit of a mere creditor, who is not now a member, and for that reason possibly not entitled to participate as such, he not having contributed to the joint fund to be raised upon future mortuary calls, is an important question, though it need not now receive more than an incidental consideration. Ordinarily we might say that such a fund could not be subjected to a creditor’s demand in a case like the one in the state court, and by process which, if anything, is substantially that of garnishment. In this case, where the mortuary calls, as shown by defendant Phelps in Ms pleading in the state court, are a trust fund to pay the losses of the contributors to it, the matter seems even clearer. Whether a premium or a mortuary call yet to be paid for life insurance, where the policy can only be kept alive by its payment, is a subject of any species of garnishment by creditors, in the hands of the policy holder, is another question which may become of much moment. Ordinarily we would certainly say that it was not a
Section 720 of the Eevised Statutes of the United States forbids the issuing by this court of any injunction against any proceedings in a state court, except in bankruptcy matters. This necessarily means a pending, and not a past or terminated, suit. The statute is a wise one, as nothing could be more incongruous and unseemly than for the courts of the United States to attempt to control by their processes the ordinary actions of the state courts. Of course, this does not mean that if this court first acquired jurisdiction of a subject-matter, or if a case had been lawfully removed here, in some instances, in support of its own jurisdiction, the parties thereto might not be directly operated upon by the court; but the statute otherwise plainly forbids this court to enjoin a proceeding in the state court, and this rale is extended to the officers of that court, as an inherent part of it. And this court will not enjoin a proceeding of the state court in this instance if one is there pending. It is, therefore, of the utmost importance to ascertain whether, since the final judgment in the ordinary action at law was rendered, on May 19, 1900, there has been any pending proceeding in the state court, within the meaning of the law, or whether there is any proceeding now pending there, within the meaning of that statute. If the defendants are mere wrongdoers, and if their threatened actions are injurious to the complainant, different results may follow. Assuming it to be valid, the court is clearly of opinion that, from and after the rendition of that judgment on that date, that action was functus officio for all purposes of pleading. Its force was spent, and all steps attempted to be taken thereafter, except in way of writs for the execution of the judgment, were coram non judice and void. Brown v. Vancleave, 86 Ky. 381, 6 S. W. 25; Meadows v. Goff, 90 Ky. 540, 14 S. W. 535. Pursuant to these authorities, and many oth
Assuming for the purposes of this motion only that the judgment of May, 1900, was valid, and regarding the action in the state court as having terminated at the time of its rendition, and as thereafter only providing support to writs for (he collection of the judgment, or for a separate suit in equity, under section 439 of the Code, the petition for the removal came too laie, though whether the necessary jurisdictional amount is involved may present at some time an interesting question. The judgment was for §2,360, and interest thereon from its date, and for costs. Whether the more than §360 of interest manifestly included iii the §2,360 then merged into and became part of the principal, in the sense of the removal acts, may yet demand attention. At present, iiowever, it seems immaterial. The orders appointing the Fidelity Trust & Safety-Vault Company receiver being simply nullities, that company is not an officer of the state court, and enjoining it in no way enjoins a proceeding in the state tribunal. This being so, the facts stated in the bill of complaint seem to present sufficient grounds for ihe temporary injunction prayed for against the defendant, the Fidelity Trust & Safety-Vault Company, and also against the defendant Phelps, except that he should be left at full liberty to collect his judgment by all lawful means, other than by subjecting thereto the mortuary calls, assessments, premiums, and dues accruing upon the certificates or policies of members of the complainant association, to which, as we have seen, he has as yet manifested no right. This court could not enjoin the execution of any of the waits for enforcing the judgment, and it