309 F.2d 395 | 5th Cir. | 1962
Richard J. REYNOLDS, Appellant,
v.
Muriel M. REYNOLDS, Appellee.
No. 19607.
United States Court of Appeals Fifth Circuit.
November 2, 1962.
Rehearing Denied November 29, 1962.
Richard M. Scarlett, Brunswick, Ga., Bruce D. Dubberly, Glennville, Ga., Phyllis Kravitch, Aaron Kravitch, Savannah, Ga., for appellant.
E. Smythe, Gambrell, Harold N. Hill, Jr., Gambrell, Harlan, Russell, Moye & Richardson, Atlanta, Ga., Charles C. Stebbins, Jr., Darien, Ga., for appellee.
Before TUTTLE, Chief Judge, BROWN, Circuit Judge, and JOHNSON, District Judge
PER CURIAM.
After the divorce decree was entered by the Georgia divorce court, the plaintiff there (appellant here) filed what he variously describes as a petition, application or motion directed to the defendant (appellee here) to show cause why certain life insurance policies which had been produced by her under peremptory order of that court should not now be adjudged to be "the property of" the plaintiff and possession of them "delivered over to him." No process was issued or served on defendant. The defendant, a nonresident of Georgia, removed the case to the United States District Court. Thereafter she moved to dismiss for want of jurisdiction because of inadequate process or service thereof.
The District Court, after extensive hearings and on a record which details every possible relation between such policies and the divorce proceeding, denied the plaintiff's motion to remand. Thereafter the Court dismissed the cause for lack of jurisdiction.
The District Court was right on both scores. Neither ownership nor right to possession of such policies was an issue in, or determined by, the divorce proceedings. The relief sought, by whatever name now described, was not ancillary. It was an independent, separate, new proceeding which the defendant was entitled to remove. Since it was not ancillary, the purported service by mere notice to defendant's divorce action counsel was inadequate. Dismissal for want of jurisdiction over the defendant was therefore appropriate.
Affirmed.