*3 Before HUTCHESON, SIBLEY, HOLMES, McCORD, WALLER, en (Judge 'banc. LEE not participating.) WALLER, Judge. Circuit interpleader suit, by This Sentinel companies, pur six other fire insurance brought under the Inter- portedly Federal Statute, pleader 41(26), Sec. Title 28 U. 1936,1 S.C.A., as amended January 1. Sec. verified, interpleader— gun by his or its that: poration, jurisdiction, “Twenty-sixth. “(26) “The district nature of [*] bills Original filed (26), association, custody # by any person, Title follows: bills of courts value Of suits v bills 28, provides possession money or shall have society having [*] $500 of bills of or equity firm, nature [*] original bills more, part duly cor- be- or [*] or to arising by citizens ligation tificate, policy, policy amount of arising by or or or “(i) the value providing entitled loan Two or more adverse or written insurance, issued $500 virtue of virtue of value, one or more or for the money or amount of $500 or or other such or or more, note, bond, certificate, any note, bond, States, or other instrument being delivery or money unwritten property if— of the benefits instrument, or or obligation; claimants, property, payment claiming any of such to the more, cer- ob- complainants be- deposited $1,662.74; that (2) 22(1) supplemented by Rule and as consti- named Procedure, 28 lieved that defendants Federal Rules of Civil claiming, any Davis, having, or parties tuted U.S.C.A.,2 Harold William insurance Manufacturing proceeds of the t as Radolite business doing interest Stennett, complainants without Re were insured; Company, C. J. disin- merely Rosenthal Davis; Bankruptcy ceiver in pay- make desiring Da terested stakeholders mortgagee Company, Plywood Sales persons entitled' person Hoover, ments vis; Bradshaw and liability, well and to avoid attorneys and thereto double Pyles Breland, agents; brought necessity as the suits defending proceeds assignees from Davis *4 claimants,, by one said adverse or more of Internal Fly, of policies; Eugene Collector sought prevent injunction was to which an State 'for the of the United States Revenue conformity in with the statute. citi all Mississippi. plaintiffs were of The the de all of states from zens allegations fully of were established' Those requisite fendants, was also the and there by the following facts: claima the among Davis, insured, owner who was the the each of them alleged that nts.3 Plaintiffs mills, and operator had executed and of saw in money possession custody had in its or Plywood mortgage to Rosenthal delivered obligated to which it excess of $500 to secure Company Sales on mills these in an pay policies insurance each present and future indebtedness. Some $500; in that there amount excess of property insurance the covered the fire claimants to two or more adverse such policies destroyed by fire. or damaged states, claiming money, of different citizens adjustment There the fire dam- was an one or money or to be entitled the age proofs in and the claimed the amounts Court, poli deposited of loss in and virtue of the arising more benefits there is no on that issue. complainant insurance; that each cies of deposited in the had company insurance mortgagee claims that under Sec. $2,078.43, 5695, providing the sum for loss registry of the Court Miss.Code of payable in- mortgagees clauses in fire company which exception of one with the “(1) complainant deposited Persons claims “(III (a) has joined plaintiff may paid be as defendants- money the the or or has such interplead and when their- value or the loan or other amount of claims are such that is or the due or instrument exposed multiple may registry obligation be to double or lia into the under such bility. objection judgment for is to- abide there to joinder given payable court; (b) several claims bond or has clerk, or claimants the titles on which their in such amount of the court to the depend surety claims do not have common or court with such as the and origin may proper, or are not identical but ad judge are1 conditioned deem independent another, complainant compliance verse to and of one with or avers that he the court order or decree of the future part subject liable in whole or respect or matter of the to the with exposed A defendant controversy. of the claimants.- liability may equity may obtain to similar such inter- enter- a suit “Such pleader by way although of cross-claim or counter or the titles claims tained provisions sup rule conflicting claim. The plement not have a do claimants way identical, origin, do not limit and are not common parties permitted joinder independent in Rule 20. one to and adverse remedy provided “(2) herein another. way supersedes brought to and in addition “(b) suit Such remedy provided by limits the Title of the district district U.S.C., 1335, 1397, 2361. and Ac- §§ resides more of such provisions shall under those be con- tions reside.” in accordance with these rules.” ducted P., (2), (1) F. R. C. state and 2. Rule Casualty Maryland Glassell-Tay Co. v. that: Cir., Robinson, & F.2d 519. lor Ply- pro- Rosenthal mortgagee, Court entitled to policies, surance assignees, Company, In- wood Sales The Collector policies. ceeds of Pyles funds After the announce- a lien on Breland. asserted ternal Revenue disposition of the claim ment of the unpaid Bradshaw income taxes. States, Pyles and Bre- interposed a Hoover, agents, counsel insurance argument premiums objections on land unpaid abandoned $2,690.14 for claim of suit, propriety into as to the policies. Davis went these thereupon between receiver the contest bankruptcy fire after the claim, the two and rival claimants bankruptcy up remaining also set questions as en- fund chiefly centered Pyles claimed funds. and Breland provisions Sec. or not proceeds by virtue whether tire 5695, supra, of automatical- insured have the effect assignment made to them ly payable favor of writing bank- a loss clause in the fire and dates of poli- mortgagee ruptcy. into each fire mort- cy covering property embraced bankruptcy The claim receiver any, the gage, bearing, to what adjudicated early pro- adversely as to the action aforementioned statute has *5 agents ceedings, but that of the insurance companies of in six of the fire insurance premiums was sus- for the of the amount poli- loss attaching payable clauses to these hearing paid. Upon final the tained and compli- in mortgagee cies of the favor interpleader and the lower Court sustained in- request ance with the the unilateral by of the mortgagee, held that virtue the mortgagee surers by attorney the for the Mississippi supra], was statute [Sec. before the fire. date of the proceeds poli- the entitled to the entire of cies, -attorneys’ fees, agents’ opinion divergence costs, less and When a of arose premiums panel indebted- mortgage among the the of the of the members —since argument, of the amount the greatly ness in excess Court that heard the initial was policies. under en due the case was then referred the Court reargued. banc, before was which the case by of Appeals were taken the Collector Revenue, assignees, the by reargument Internal and for the as- On counsel Plywood Breland, Pyles signees they and with Rosenthal had theretofore conceded Company compa- attempted questions Sales and the insurance as to the to waive all -appellees. oral propriety interpleader3a nies At the time of suit and as of argument provided this announcement before Court such waiver was effective was had col- jurisdiction, they made that the had then in- United States Court lected another its full from was not waived. -indebtedness sisted absent and could thereupon appeal Therefore, and question source its was dis- of missed, this leaving as claimants before stands at the threshold of our considera- making Appeals morn- 3a. After waiver on the this For The Fifth Circuit and that ing original argument objection part any for of the counsel is no on there of appellants parties payment thereafter consented hereto to out making registry follow- Court below to the of the funds held in the of ing by attorney’s with order the lower Court the re- Court cause of this expenses by first and sult that between the second fees and allowed Court this arguments Eager attorney the Court bolow case to "Watkins & as May plaintiffs company appellees, made the follow- on 2nd and entered insurance appeal ing herein, $1,000100. was order from which no the amount therefore, is, adjudged ordered taken: “It Day con- this cause came this “This the Clerk of Court be he agreement hereby pay all under authorized and sent directed to appearing hereto, Eager attorneys parties un- & as and it to Watkins appellants, plaintiffs $1,000.00 Dixon herein the sum of to the Court attorney’s expenses Breland, Pyles E. fees and Dan Have out of L. Against registry funds held All Contentions Abandoned Appellees Company cause.” And Court this Insurance Have The United Of So Advised States Court disposed since tion and should be of first brought 4. Such suit in the District interplead-
an absence of Court where one or more of such claimants dispose er suit case. would resides reside. Apropos subject no it is noted that joinder un argued was before us as to the 18(a), 19(a), der Rules 22(1) amount of nor as to fail- the fire loss F.R.C.P., whereby plaintiffs each assert a companies ure of tender the insurance right to relief out of same series arising into Court the $14,133.33, sum of the en- of involving transactions or occurrences tire the loss as shown question of law and fact common to proofs as submitted the insured. Unless plaintiffs, proper. was had Each there is a pleadings claim the double policy (cid:127)issued a insurance a value liability against $500, in excess of all which was claimed insurance, single Plywood Company, a Rosenthal Sales interpleader plaintiff liability had in ex- citizen of a state different from that $3,000 cess of such as would have been claimant, claimant as each other requisite brought had the suit been part serted a tO'all or a of the benefits in strict law in ef- under the policies. now The amount prior fect to the enactment .the Federal admitted all to 'be the fire due for loss Interpleader adoption Statute or deposited registry Federal 20(a), Rules of Procedure 'Civil Court, equivalent or the given bond there 22(1) This, however, (2). for. The suit brought in the district brought as a suit in un- strict where one or more of the claimants resides der practice ancient rules of but was plaintiffs, reside. The re although not *6 complete conformity with the provisions quired so,5 to do stood neutral as the to Interpleader the Federal Statute as amend- paid amount The claims of the Court. ed in supplemented by 19364 and Rule as conflicting obliga arising out 22, F.R.C.P., and in at the time the effect pay pro tions the insured to the out of disposition bringing and the suit the ceeds of mortgage on the one Court, require lower that: pay hand and attorneys’ to fees on the oth er, origin, although have a common custody posses- 1. Plaintiff must have or Court could have entertained the suits even money property, sion of or must have or though to, the claims were or adverse inde a policy
issued
having
or other instrument
pendent of, one another.6
a value in excess of $500.
claimants,
2. Two or more adverse
who
We think that under Sec. 901 of
states,
are citizens of
claim
them-
U.S.C.A.6a,
Title 28
Sec.
Title
money
prop-
selves
be entitled to such
or
to
Code,
U.S.C.A., New
the Court
Judicial
or to
erty
one or more of the benefits aris-
from the beginning
litigation
had
ing by
policy
virtue of a
or
instru-
other
jurisdiction of the United States. This
ment.
provided
“Upon
section
that:
condi
* * *
prescribed
tions herein
Deposit
money
property,
or
the con-
sent
the United
instrument,
given
States is
or
to be
the amount or value of such
any
party
named a
suit which is now
registry
made into
of the Court or
pending or which may
brought
hereafter be
bond
therefor.
given
lating
Interpleader
Statute,
to
(26),
4. The
Sec.
U.S.C.A.,
Title 28 U.S.C.A.
Title
amended
was
Jan.
1936, and that amendment
remained
(1),
5. Rule 22
F. R.
P.C.
25, 1948,
effect until June
the date (26)
(ii),
Interpleader
Statute,
6. § 41
adoption
new
act of
United
States
Title
U.S.C.A.
relating
Judiciary
to
Code
and Judi
Procedure,
in which the sections
cial
re-
Complaint alleged jurisdiction
6a.
of United
States under
section.
* *
stipulation that
Plywood
signed a
United States district
amount
$14,133.33
correct
sum
was the
and in
State court
prop-
insured
matter,
quiet
appraised
to or of
subject
title
loss
sign
assignees
same. Since
mortgage
erty
for the
but
did
foreclosure of a
rather
property,
$17,000
assignees
had claimed
upon
personal
lien
real estate
adjudica-
loss,
securing
than
amount of
purpose
<m
upon hold-
lien
not dismissed
OMy
tion
or other
mortgage
touching
ap-
was an
it
claim on
below that
ing
the United States
Court
muy have
They were
propriate
interpleader.
premises
personal
involved
case for
property
stay
and introduce
the case
[Emphasis
added.]
testimony
hearing of
insur-
final
on
lien
Here the
States claimed a
United
damage
adjuster as
caused
ance
policies.
proceeds
of insurance
facts
property by
Under these
the fire.
adjudication touching
lien
Therefore,
properly
we
pure
cannot
call this
case
personal
the United States claimed on
merely a
interpleader.
stat-
seems
United
sought. The
involved was
plaintiffs
interpleader wherein the
utory
with the
in accordance
States
notified
as
all of
need not stand neutral
statute,
case,
sought
entered the
parties.
claims of all of the
Thus,
favor.
adjudged
lien
in its
neutrality
The lack of
-these circum
held,
it had
as the
below
Court
this case
stances seems to differentiate
States.
respect
case
from the
of Cramer
Hartford,
Mut. Life Ins. Co.
Phoenix
statutory
This was a
Conn.,
141, 146,
Cir.,
91 F.2d
wherein
interpleader. The
pure
and not a
case
the real
was held that
the claimants were
plaintiffs
to- the.
stood neutral
as
sum
contestants and that
who
$14,133.33,
the fire loss
a nomi
stakeholder
somewhat of
mere
adjusted,
neutral
they
did-not stand
nal party whose
did not deter
assignees, Pyles
Bre
claims of the
jurisdiction,
present
case
mine
since
land,
assignees
of that
excess
sum.
plaintiffs
were not
stakeholders
$17,-
mere
sued
in the State
Court
*7
assignees
to the claim asserted
000,
policies. The
the face value of the
deposit.
excess of the
But the Cramer case
against
insur
declarations
there filed
strongly supports
ad
our view that
all
companies, which
identical ex
ance
were
verse claimants'
be citi
are not
amount,
cept
of which
as to name and
zens of different states.
In that case the
was attached to the bill of
Court,
Gardner,
through Judge
speaking
they
$2,500
show
claimed
-from each in
said:
$2,078.43,
company
surance
of
instead
citizenship
company,
argue
deposited by
except
“Appellants ably
each
amount
one,
deposited a
of
two of
number
large
smaller sum. This
the same state of
a
jurisdic-
part
of
bill of
adverse claimants
fatal to
declaration was made a
we
interpleader.
between tion of the federal
but
think
As to the difference
$17,000,
$14,133.33,
deposited,
put
has
to rest
the recent
so
-so
been
companies
Supreme
claimed,
Dugas
decision of the
Court in
v.
plaintiff
insurance
Co.,
Surety
neutral,
414],
did
stand
defended
American
[300
Moreover,
516,
515,
claimants residents of
Dugas
In
opinion
the sions of this
v. American
brought.
In the
Court.
suit was
Surety
Cir., 82 F.2d
said:
F.2d
it is
we
Appeals, 82
Circuit
Court
‘*
**
are,
all
and at
“Some
the claimants now
said,
Some of
were,
citizens of
times
the bill
mentioned
are,
at all times mentioned
now
Louisiana, and
named states other than
were,
other
bill
named states
citizens of
are,
some of
all
these claimants now
and at
Louisiana,
claim-
some of these
than
were,
in times mentioned in the bill
citizens
are,
now
times mentioned
ants
and at all
and,
saying,
the state of
were,
Louisiana.”
so
state of Louis-
the bill
citizens of the
the in
held that there was
iana.’
terpleader
appeal,
suit.
On
opinion
the Su-
“In
the course of the
text
L.Ed.
S.Ct.
that,
preme
‘Many
is noted
it
Court
Supreme
“Plainly
the court
said:
Court
claims
of insurance written
arising out
subject-matter
had
Of both the
Reciprocal
Lumbermen’s
Louisiana
parties.”
and the
quali-
under the
Association were asserted
Maryland
fying
Casualty
bond.’
Our other case is
Co.
Robinson, Cir.,
Glassell-Taylor
&
said, ‘Plainly
had
the court
“It
also
519, 521,
F.2d
in which the
was
subject-matter and
jurisdiction of
both
’
* * *
corporation Maryland,
but the citizen-
parties.
ship of the defendants
be-
was
shown
jurisdiction to
‘The
“Again
said:
low:
supplemental bill is
from
free
entertain
”
doubt.’
citizens of
contractors were
Louisi
ana;
Associates, Inc.,
Harris
was a citizen
present
case there was divers
Delaware;
Workman was a citizen
ity
between
Inc.,
Texas;
Managan,
Krause &
awas
defendants;
was a real
and all
there
corporation
Louisiana;
Mitchell was
claimants;
there
between all
Texas;
Supply
citizen of
Mid-Continent
Plywood,
diversity
a citi
between
Delaware; Hydraulic
a citizen of
De
claimants,
Illinois,
all other
zen
velopment Corporation was a citizen of
States, against whom
except
Ray
Massachusetts;
was a citizen of Lou
Plywood
requisite.
diversity was not
isiana;
Dickey Clay Mfg.
W.
S.
Co.
Pyles and Bre
fund.
claimed the entire
Louisiana;
a citizen of
McWane
Iron
Cast
the entire fund.
claimed more than
land
Pipe
corporation
Company was
of Ala
parties
any of the
way
There was
We
“There“was the
bama.
said:
side as to the
re-aligned on the same
and claim
registry
the Court
into' the
paid
*8
**
required
ants as is
in an inter-
and his
of the insured
receiver
unless the
pleader
(26),
suit under Sec. 41
Title 28 U.S.
in
have been. Since
assignees could
A.”
the fact that
notwithstanding
C.
there
stay
to1
were
surance
adverse
residing
were six
claimants
in Lou
Pyles
the suit
defend
isiana.
of the amount
for a sum excess
Breland
necessary parties
they were
paid into Court
Express
Railway
Agency v. Jones,
In
106
purpose as
constitutional
341,
said,
fulfilled
344,
F.2d
the Seventh
Circuit
of different states.
citizens
to suits
diversity
reference
be-
tween adverse claimants in an
hold, however,
if the
that even
We
necessary
“It
suit
not
that there
that:
interpleader suit 'had been
plaintiffs in
complete diversity
citizenship among
be
gone
decree and had
final
before
dismissed
all the adverse claimants. Cramer v. Phoe-
case,
requirement of the stat
out of
Co., Cir.,
nix Mutual Ins.
91 F.2d
8
141.”
were two more
be
there
met
ute would
D.C.,
Vance,
also
Trust
v.
See
Girard
Co.
citizens of different
were
who
claimants
Mackay,
In Blackmar
225 778, 58 571, den. U.S. 1937, L.Ed. reh. Act, approves 302 the 1936 the draftsman Ameri 263, 602; Dugas 82 L.Ed. v. S.Ct. in an article written interpretation such 953, 1936, Surety Cir., 82 F.2d 1936 can adoption of the 5 after the immediately 515, 81 1937, 414, 300 S.Ct. he stated: aff’d U.S. page 57 at 975 Act in Yale 45 L.J. 712, 720, 1937, 57 be can L.Ed. reh. den. exists if statute ‘jurisdiction 787, Life 1365; Mut. adverse L.Ed. Pac. two S.Ct. 81 require only that construed to D.C.W.D.La.1930, 46 F. Lusk, v. Ins. Co. be citizens of must claimants 505; Co. of Rutgers 2d Fire Ins. interpretation conforms Globe & states. Such D.C.W.D.La.1931, Brown, N. F.2d Act, 52 Y. v. general purpose of 1936 given be courts should the United States interpleader cases power all to settle we face in the of these decisions If This courts. cannot handled state be en Congress, in the were in doubt by five under supported
view is
cases
Interpleader. Stat
actment of the Federal
Acts,
inter-
which granted
and 1926
1917
designed
into one
ute—Which
to bring
antagonistic claimants
pleaders
some
where
particular
to a
court all
claimants
liberal
apparently
co-citizens.
divided
equitably
fund so that it could be
re-
giving
adopted
the courts
attitude
being
rather than
race to
among all
may be
interpleader acts
lief under former
,
statute
intended so to restrict the
swift—
”
adopted
of 1936.’
as well toward
Act
only
that there could be
claimant to
Irwin,
state,
put
per
Ins.
v.
that doubt
be
at
In
Fund
Co.
fund
would
Fireman’s
182,
180,
D.C.,
F.Supp.
Judge
In
(b)
Under
rest
subsection
of the Federal
82
effect,
1936,
wood,
terpleader
same
stated:
Act of
under which this
holding
opinion,
tried,
“However,
my
which,
defining
the action
was filed
case
interpleader suits,
bill
provides:
one in the
of a
maintainable as
nature
venue
41(26)
brought
under Section
suit
“(b)
Such a
[now
U.S.C.A.,
1397,
of Title 28
district
in which one
1335,
court
district
§§
2361]
the Federal Rules of Civil or more
resides
re
and Rule 22 of
U.S.C.A.,
Procedure,
although
[Emphasis
28
there
is obvi
side.”
for it
added.]
among
complete
ous
if there could
one adverse
Maryland Casualty
per
Co.
defendants.
claimant
there
could not
certainly
state
Cir.,
Glassell-Taylor Robinson,
156 be
v.
&
than one of
5
more
such claimants
519;
Equitable
district,
Life
F.2d
Mallers v.
Assur.
since federal court districts
Soc., Cir.,
7
F.2d
denied
87
certiorari
do
extend across
state boundaries.
1343;
S.Ct.
L.Ed.
301
57
81
sought by
relief
48;
Mackay, D.C.,
F.Supp.
Blackmar v.
liability
and a mul
prevention
double
Phoenix Mut. Life Ins. Co.
Cramer
tiplicity
designed by
suits as
Act.
Conn., Cir.,
Hartford,
cer
F.2d
Maryland Casualty
See
Co. v. Glassell-
tiorari
58 S.Ct.
denied 302 U.S.
Robinson,
al., Cir.,
Taylor
et
F.2d
&
571.”
L.Ed.
Sanders,
519, and National Fire Ins. Co. v.
Cir.,
recovery.
Printing
does not stand
In Tucker
mortgagee
Co. v. Board
Supervisors,
336,
608,
a clause
the shoes of the insured mider
171
158
Miss.
So.
338,
Supreme
providing
payment
occur-
Mississippi
loss
said:
Court of
" * * *
ring
policy
mortgagee for
under the
force at the time
law
it,
part
the contract
by
Supreme
it has been
Court of
forms
held
made
Mississippi,
and is
by
written into the
generally,
courts
contract as much as
expressly
if
incorporated
mortgage
under a
York
loss
Edwards
Standard
therein.
New
595,
793;
v.
payable
mortgagee may
Kearzey, 96
24
recover
U.S.
L.Ed.
clause
Ennis,
Ennis
notwithstanding
City
insured
233
fact
v.
Waterworks
652,
1139;
767,
Og
U.S.
mortgagor could not have recovered be-
34 S.Ct.
58 L.Ed.
Saunders,
213,
606;
having
or den v.
cause
his
the fire
12
6
caused
Wheat.
L.Ed.
otherwise
breached covenants
Louisiana ex rel.
Southern Bank v. Pils
bury,
278,
1090;
policy.
warranties
of the
U.S.
L.Ed.
White
Hart,
685;
646,
v.
13 Wall.
20 L.Ed.
Gunn
The last
phase
consideration
Barry,
610,
212;
v.
15 Wall.
In
L.Ed.
of this
case
as to whether
not Sec.
Ayers,
re
443,
164,
123 U.S.
8 S.Ct.
31 L.Ed.
5695,
1942, automatically
Miss. Code of
216; Selover,
Walsh,
Bates &
v.
Co.
part
every
becomes a
fire insurance
112,
146;
33 S.Ct.
57 L.Ed.
Mur
policy insuring
on
which there
ray
Charleston,
v.
24 L.Ed.
mortgage
is a
deed of trust. This Court
760;
City
Quincy,
Von Hoffman v.
by
pertinent
is bound
decisions of the
403;
Wall.
18 L.Ed.
McCracken v.
Supreme
Mississippi. We note
Court of
Hayward,
397;
How.
11 L.Ed.
Price
Cowan, supra,
v.
that in Aetna Ins. Co.
Harley,
v.
142 Miss.
cited, pure interpleader where in a case of SIBLEY, Judge Circuit (concurring). in which such lacking it was plaintiff’s citizenship opinion I said concur in was immate judgment, to add subject rial, wish some words on the real being between argued pure interpleader, also is a case in tions are aof being simple the nature of because of a stake-holders. They such, suit in state the face of the fact end the decree express Attorneys instead of the amount of the to that effect. fees subsequently loss fixed without and other contest. costs were allowed them on complaint allega- On the face of this basis. *13 230 citizenships interpleader, Is a suit this a true bill groups
two of claimants whose interpleader, present case the a statu- wholly In the in nature of diverse. Illinois, tory inter- mortgagee, interpleader, or a civil action of there is a claimant fund; pleader, have the below claiming and insured and court the whole the did bankruptcy the and claim on the his trustee it mortgagee, and citizenship adverse claimants? adversely to between whole adversely so, appellants If have been insured claim should the assignees of the Mississippi. enjoined prosecution else, in the state every being all from the to pending against from court of their suits therein plaintiffs have diverse they companies? sev- filing their bill There defendants. questions remedy why sought equitable interpleader eral reasons these should defendants, negative. injunction be against all and an answered in the them, put to leave all of This not authorized under action was discharge money of their court practice, injunction federal personal liability. initially think there I dissolved, because the case should be does controversy plain- was of a enough requirements not come within juris- justify federal tiffs defendants federal that reduces statute in- this statute. With diction under jurisdictional amount to $500. deposited, it junction fund granted and the upon here amount each necessary for the court now becomes $3,000 policy is less than more than owners, just as it must do ascertain its $500, interest and costs. The exclusive of case, dependent juris- receivership and a policy each several amounts due under regardless do this diction arises to may jurisdic- obtain combined to claimant or the amount $3,000, over is tional which claim- But here Illinois his claim. ordinary necessary jurisdiction in confer against all the Missis- aligned ant can be Moreover, diversity cases.1 even if it has perfect diversity, if sippi with a jurisdiction, court should with- the federal necessary. Although original that be speaks hold court its exercise until state plaintiffs controversy have initial and their law, a doubtful of state of, disposed the court still has been decisions one of which two state involving dispose power duty to of the fund. by impli- been is claimed to have overruled original presence do not think I by this on the cation. A decision worry as a claimant need the United States principle may merits be set aside at subject United States us. If the Supreme Mississippi. by time Court alway suit, is federal there by parties There is no contention saw United States fit thereof. If the interpleader; bill of that this a true fund, so it could do to claim intervene remedy, argument But disturbing jurisdiction. without below, was invoked formally has withdrawn United States the nature of an and was case, satis- having been otherwise from the 41(26), 28 U.S.C.A. authorized § any difficulty that fied, has cured this 1335,2 amended, 28 Title New U.S.C.A. § point. this been on have there 22 Federal Rules of Civil Rule n rule and (dissenting); Procedure. Said statute HOLMES, Judge Circuit requirements many in abolished of the ancient (concurring McCORD, Judge Circuit remedy. practice is that the result dissent). Gaskill, Marshall, 47; Elgin Thomson v. L.Ed. 442, 315 106 U.S. U.S. v. 484, Town of 1. 249; 673, 447, 582, 62 86 L.Ed. L.Ed. Ex S.Ct. 951. 27 1 S.Ct. Although this action filed on Ins. 117 U.S. 6 Nov. Phoenix Parte opinion Field, 28, 1947, 923; Clay references will L.Ed. S.Ct. new code be made to the convenience S.Ct. L.Ed. changes pertinent 1044; have been v. Camden Ins. As where Di Giovanni arrangement except phrase- 64, 67, sociation, made ology. 56 S.Ct. Notes, page Reviser’s See 1335, New Title 28. Section owing custody plaintiffs which is at this time is more favorable and, while invoking remedy; this char- the one than it suits of has ever necessary claims be is not their This does acter in the federal courts. origin, it however, or have a common mean, no limits identical that there are mutually ex rem- essential that such claims be the uses or abuses the federal portion some edy that, merely clusive with reference to by interpleader; or *14 is sus if one complaint thereof, inter- means that labelling of which its an action whole multiple in pleader, tained the other must be denied or plaintiff a with a dual plain or part.3 An liability may averment pay into an court any respect or liable in to satisfy compel tiff is not one creditor sufficientto required. The is litigate is all of the claimants not over fund that another to provided by Federal equal remedy Rule 22 of the any event to owing to an amount way limits Procedure in no alleged one Rules of Civil of claimants. remedy 4335 given Section of requisite still some character- There are Code;4 or nor is the venue new Judicial remedy interpleader. These istics actions the statute important jurisdictional are affected the rule.5 purposes a court but because sweeping are of the words So some States, injunc- permitted grant to an is not employed to in said rule must look that we stay proceedings in a state tion to spirit in order language its rather than its except expressly act of as authorized an to absurd meaning ascertain its and avoid necessary in of its Congress, or where aid instance, begins: rule results. For jurisdiction, protect its or to effectuate plaintiff against claims “Persons 28 U.S.C.A. 2283. A civil judgments. § joined may as defendants be action in the nature an interplead to when their claims are such within the under said section falls exposed or may is be to exception statutory prohibition to the multiple liability.” Literally, double or injunctions stay against proceedings to may join this would mean that a plaintiff court; but, exercising such state action, all of one as indeed his creditors jurisdiction, extraordinary federal bankruptcy he and in the distribu- granting be careful courts should avoid to of an estate decedent tion of the insolvent clearly injunction falling in cases not corporation. problem The in inter- exception. within the An abuse pleader to is similar the administration in injunctions stay power granting to admiralty liability of the limited in a be proceedings state court should owner of a lost vessel. The intention of guise giving a tolerated under the liberal however, provide remedy is to Rule construction to a remedial act. against multiple vexation of double litigation single demand, for a which the requisites remedy federal ready satisfy is willing to interpleader are that there must be an of the claimant his favor who establishes thing, over the same actual right remedy thereto. The allowed is not debt, duty, benefit, adverse to avoid the risk two recoveries if are claimants who citizens plaintiff has made himself liable to two states; conflicting they must have claims claimants for the same demand.6 The to of the value or more of $500 jurisdiction, and venue be must met in using language, courts are 3. “In joined.” claim unsuccessfully relation is probably groping toward Rules, amended, Moore’s Federal principle that claim must sound p. pamphlet form, 45. exclusive, mutually e., i. if one claim following is from 6. wrong.” brief must 45 banc en behalf of court Journal, page 981. Law Yale p. companies, 45: “Should this 1335. § 28 U.S.C.A. Title [s] here hold contract plaintiffs with the owner Federal Civil Pro- Rules of mort- 82 5. Rule “Therefore, gagee possibly principles of such nature usual cedure. 232 protect
officeof an
the risk
is not
of loss
from the demands of rival
party against
multiple liability
double or
the same thing.
As
strict
bills,
against
expense
says
vexation of
ground
the court
that the sole
equitable
multiple litigation
respect
double or
multiple
relief is “the risk of
liability.
liability
suits
State
Texas v. State of
when the
single.”
Florida,
398, 405-408,
306
59
same
S.Ct.
is held to be true of bills in the
1179;
83
121
Na-
of interpleader,
L.Ed.
A.L.R.
nature
juris
Sanders, Cir.,
tional Fire Ins.
v.
5
38 diction of
guard
Co.
which is
“num
212, 214;
Fisher,
F.2d
demands,
Hare
Crawford
erous
only one
436, 441;
Pomeroy’s Equity,
(5th
p.
subject.”
fund
theme,
On the same
Ed.).
p. 407,
U.S. at
page
S.Ct. at
83 L.
Ed.
points
A.L.R.
the court
Florida,
In State of Texas v.
State
*15
out that there
danger
be
must
of two re
supra, there is
a succinct statement of
coveries
“only
when
party
is entitled
equitable principles
interpleader,
which
to succeed.” In
paragraph,
the next
England
we inherited from
when the Con-
powers
court holds that
its
should be
adopted.
stitution of the United States was
prevent
exercised
the loss
to
which other
sponte,
inquiring,
The court was
sua
might
wise
result from
independent
“the
original jurisdiction,
question
its
and the
prosecution
rival
mutually
but
exclusive
by
was whether
the issue framed
claims.”
p.On
of
none
claimant,
every
assignees
includ-
mortgagor,
what about the
adverse to
Plywood
issued,
States;
provided
ing
policies,
Rosenthal
whose
the United
when
Illinois;
Company,
and in
a citizen of
no event was
to be for
Sales
Mississippi. The interest more
than
insured
two citizens
the interest
unaltered,
bankruptcy,
property?
policies,
a citizen of
of the receiver
These
Plywood,
Mississippi,
a citizen of were held
at
time of the
is with
insured
fire;
wins,
Illinois,
thereto, upon
mortgagee
though
application
prior
because
proceeds
the debt of
creditor, mortgage
is
will
credited on
clauses were
mortgagor, there-
attorney
bankrupt,
who is
sued and mailed
for the
to the
pro
encumbered
mortgagee.
tanto other
releasing
What was the effect of these
bank-
res in
Mississippi
which constitutes the
transactions under the
law?
ruptcy.
Was it the same
had
as if different
sep
been issued at different times to insure
non-
all
the bill of
property,
arate
in the same
as the
interests
aligned
resident
claim';
appellants
Mississippi
did the
alleged claim-
plaintiffs,
as
automatically
in
statute
write these clauses
States, are
ants,
including the
policies,
mortgagee claims?
as the
defendant;
arrangement
but this
named
Mississippi
has
decided:this
purposes.11
jurisdictional
is immaterial for
specificpoint.
bound to
federal court
Is
jurisdiction here
whether
The test
it in a case
its
decide
where
courts, under 28
the United
district
States
questionable?
amended,
41(26),
would have
U.S.C.A. §
original
action
jurisdiction of a civil
that,
In their brief the
contend
*17
Pyles
controversy
same res
over the
them,
under the
cited
the
authorities
Mississippi,
Breland,
and
citizens
are
claimants
held to be adverse to each
Illinois,
States,
citizen of
the United
although
the
all of them do not seek
where-
Mississippi; and
citizens of
and two
and
claim
entire
same amount
do not
as
properly aligned
parties
were
all
fund;
they say, as mat-
but nevertheless
with
plaintiffs or
accordance
defendants
fact,
ter
claimants took
controversy. The
in the
their real interests
they
were
position
entitled
Stennett,
appellants and
C.
claims
J.
payments
the entire
receive
under
mutually
only adverse but
Receiver,
not
are
policy.
certainly
Ply-
This was
as to
true
moreover,
exclusive;
cannot
Stennett
Stennett, Receiver,
wood,
appel-
and
interested
win,
most
he
;
undoubtedly Plywood,
lants and
Bradshaw
reason above
mortgagees win for
Stennett, Receiver,
Inc.,
Hoover,
&
and
stated.
States,
adversely
claiming
were all
United
merits confirms this
glance at
A
appellants.
With three out of
four
issued,
were
opinion. When the
Mississippi
being
citizens of
therein.
It
were inserted
clauses
mortgage
filed,
when this suit was
and one additional
mortgagor
intended to
is said
being
not
claimant
a citizen of
state
equity
property.
only
his
insure
state,
foreign
only
arbitrary
or
the most
do
had the
not
he
Whether
arrange
alignment
all the
could
citizens of
law. There
state
question
this is
Mississippi
controversy
on
one side
are
insurers
to be no doubt
seems
supra,
requirements
sity
ordinary
11. Treinies v. Sunshine
Mining Co.,
federal
jurisdiction
equity
distinguished,
Supreme Court,
were
of its
erein
wh
p. 72,
p. juris
motion,
U.S.
60 S.Ct. at
Note
raised the
own
that,
diction,
11.
held
under
Inter-
and
requirement
pleader
Act of
Co.,
v. Phoenix Ins.
12. Bacot
96 Miss.
diversity
as to the
L.R.A.,N.S., 1226,
50 So.
Ann.
doctrine
Straw
claimants.
Cas.1912B, 262;
&
Scottish Union
Na
reaffirmed,
Curtis,
supra,
bridge
v
v. Warren
tional
Ins. Co.
Gee Lumber
p. 71,
Diver-
238. by the question is an element States the federal court. A not United federal $500. statutory- 28 special jurisdiction of under U.S.C.A. this § remedy. plain A error, it is the notice,16 with this confused remedies court the
Having these was allowance attorney’s opinion appellees. one costs and grace, ease and the relies on fees to The each, requisite (a) improper diverse element of viz: was this suit was allowance interpleader. and defend- not one plaintiffs pure majority between The opinion 223, 224; says, ants, diverse F.2d “This (b) and claimants, fact disregarding the was a statutory adverse and not a case * * * lacking requisite pure (a) interpleader. amount is that Since requisite diversity stay is lack- (b) and proper alignment Pyles and ing. question of defend The suit previously dis- plaintiffs has been and for Breland a sum in excess of the dissent, paid they need not amount in this and we Court were neces- cussed repeat sary parties The state- discussion here. and fulfilled the constitutional purpose United could inter- States as to suits between citizens of ments fit, view, formally Contrary had and with- states.” if it saw vene case, misleading. opinion says, are concurring F.2d 229: drawn from present pure did not in this “The intervene case is one of inter- United States action; pleader, plaintiffs acknowledging as a lia- it was named defendant fund, bility policies paying and filed an an- claiming the it on the their face was rendered, against it Judgment he They swer. into court to distributed. ap- discharged from appealed, dismissing later now been and it ** peal. paid attorney’s of the have amendment fees. It There judg- argued pleadings; this also complaint case in force; still it is appealed from is nature of because a suit ment United States and its officers. in a court against the state face subject suit on States is instead of The United the amount loss subse- citizenship, quently contest. ground fixed without On the only ground complaint allegations federal inter- face of this are that is pure interpleader, under Act pleader jurisdiction being simple They 1335of the Code. Section stake-holders. were in fact Judicial amendment, such, expressed an federal the decree is absence of to that Attorneys of the date fees and jurisdiction is determined effect. other costs instituted. were allowed them that basis.” suit Therefore, 2410(a) affirming are judgment New we 28 U.S.C.A. § Judi- jurisdiction attorney’s grant costs awarding fees as if cial Code does appellees controversy to the States were disinterested stakeholders. matter merely jurisdiction on ground waives the sover- Shall we sustain district courts. from is a constitutional- immunity of the United States that there eign claimants, it insurers suit, he as between the as- consents named states, civil and in actions in citizens of different the same party, in certain “having judgment court sanction allowance to the federal otherwise state or subject they on the matter.” same insurers party by stakeholders? It is United States as a disinterested true presence here claimant waived the statute neither defeats nor the successful of this virtue attorneys probably because its point, in an action of inter- confers interpleader; applies but the a true statute to suits in deemed this pleader. attorneys courts, or their should not censured as federal but if the as well state even if prejudiced, they, were mis- removed client in a state he action is *21 Appeals 24-2(b) for the Fifth Rules of States Circuit. 16. Rule the United Court of judges granting, in remedy, being taken since said as to the nature of favor petition. majority judges denying, said are and two favor of themselves question. judge competent to accord on the claimant The is not It is the retired court, petition justice that participate is entitled to this in the decision from administered; 46(c) which be consistently rehearing should for because Section Code, 46(c), judges and when four out of of the five U.S.C.A. § Judicial opinion provides are a true bank of the that is not which that a court shall this the cir- interpleader, judges the consist of all the statutory a action active judgment 294(d), U.S.C.A. cuit. Section § nature appealed shall judge (d), provides from be modified consist- no retired should that des- ently perform except when majority judicial view on this duties with the point. ignated assigned. is therefore eligible apparent judge a is not retired lack There has of astuteness bank, upon even hearing a sit ques- holding appellants to waiver of a judge. special chief designation of the propriety tions of the judges who con- six there are active Since suit, jurisdiction; provided the court had bank, petition for court in stitute the equally astute this court should them. rehearing should submitted error, plain emerges correcting a justice, except circuit judge a No other consequence a the record as from case, in this qualified on this court sit opinion majority the court as to in bank duly constituted since the the nature of the suit. majority by a heretofore been ordered has Rehearing. On Petition for judges. of the deny judges are not authorized Two HOLMES, HUTCHESON, Before A petition in this case. rehearing for WALLER, McCORD, SIBLEY, Cir- become judgment of this court does Judges. cuit allowed for after the time final until and, rehearing; petition filing of PER CURIAM. filed, the petition when has been said petition rehearing in the above- until judgment final does not become styled cause Clearly it takes has been denied. same Denied. constituting a majority judges of the quorum order make court to McCORD, HOLMES and Judges Circuit 29 and Rules apply any rule. See or to (dissenting). of this court. rules necessarily judicial This court no- takes proceedings
tice of the this case membership. Consequently, it its own this case
knows heard before duly consisting constituted court in bank judges court,
of all active six ex-
cept account one who on of illness did not Likewise, participate in hearing. CO., Inc., AL OIL SOCONY-VACUUM majority judges knows that one OIL CORPORATION. LIED participated in the who decision has since No. 9896. 1949; retired, effective October Appeals. 1949; July, States Court ill judge who died Seventh Circuit. successors to fill both vacancies Dec. 1949. October, appointed in judges remaining upon active The four participated decision, in its who equally divided what action petition taken should be for re- case,
hearing pending now in two of