Provident Sav. Life Assur. Soc. v. Loeb

115 F. 357 | U.S. Circuit Court for the District of Eastern Louisiana | 1901

PARLANGE, District Judge

(after stating the facts as above). To sustain the demurrer, it is contended that the plaintiff should have deposited $io,ooo, claimed to be the amount called for by the policy, and that plaintiff should claim no right to make any deduction; while, on the other hand, the plaintiff contends that the policy does not call for $io,ooo, but for that sum less certain deductions, which, being made, leave the sum of $9,723.75 deposited in the cause. In other words, the plaiptiff urges that it has deposited the full sum which the contract calls for. For the demurrer, it is further said that as Mrs. McNamara et al. may hereafter claim, by answer or otherwise, that the plaintiff had no right to make any deductions from the $10,000, a situation may develop in which the plaintiff would be asserting, and Mrs. McNamara et al. would be denying, the right of plaintiff to make any deduction from the $10,000, and that, a bill of interpleader being allowed only to one who is absolutely disinterested as to the fund deposited in court, the bill in this cause should be dismissed. Even if there were merit in these contentions, it is clear that no relief could be given on demurrer which admits all the allegations of the bill. But even if the matter were in a condition to permit the court to consider the contentions urged for the demurrer, it seems dear that the bill would still stand. Groves v. Sentell, 153 U. S. 485, 14 Sup. Ct. 905, 38 L. Ed. 785, is cited for the demurrer, where it is said:

“The general rule is that a party who has an interest in the subject-matter of the suit cannot file a bill of interpleader, strictly so called. [Underscoring mine.] In fact, me assertion of perfect disinterestedness is an essential ingredient of such a bill.”

But the very case of Groves v. Sentell proceeds to sustain a bill in the nature of a bill of interpleader, in which Sentell was found by the court to have had a substantial interest in the litigation; the only result of this finding by the court being that Sentell was not allowed his solicitor’s fees out of the fund.

11 Enc. PI. & Prac. verbo “Interpleader,” after treating of bills of interpleader strictly so called, says, at page 479:

“A bill in the nature of a bill of interpleader will lie by a party in interest [underscoring mine] to ascertain and establish his own rights, where there are other conflicting rights between third parties.”

See cases there cited.

It is therefore clear that, even if all that is claimed by counsel for Mrs. McNamara et al. could be made to appear on this demurrer, it would still have to be overruled. See, also, 2 Story, Eq. §§ 813a, 824; Railroad Co. v. Clute, 4 Paige, 384; Thomson v. Ebbets, Hopk. Ch. 272; McHenry v. Hazard, 45 N. Y. 580; Bedell v. Hoffman, 2 Paige, 199.