119 F.2d 497 (8th Cir. 1941), 11880, Kithcart v. Metropolitan Life Ins. Co.

Docket Nº:11880.
Citation:119 F.2d 497
Case Date:April 30, 1941
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 497

119 F.2d 497 (8th Cir. 1941)




No. 11880.

United States Court of Appeals, Eighth Circuit.

April 30, 1941

Rehearing Denied Aug. 4, 1941.

Page 498

T. D. Judy, of Kansas City, Mo., for appellant.

Henry I. Eager, of Kansas City, Mo. (William C. Michaels, of Kansas City, Mo., Harry Cole Bates, of New York City, and Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.


This was a suit in equity brought by appellant as plaintiff to set aside a judgment entered in the United States District Court for the Western District of Missouri on the 18th of May, 1933, in an action at law wherein the appellant here was plaintiff and the appellee was defendant. That action was one at law brought to recover on a policy of accident insurance issued by appellee. The action was tried to the court and a jury, resulting in a verdict in favor of the defendant and against the plaintiff, upon which verdict judgment was duly entered from which no appeal was ever taken. The parties will be referred to as they appeared below.

Two years later, plaintiff brought suit in equity to set aside the judgment obtained by defendant in the action at law, upon the ground of fraud. Defendant moved to dismiss the complaint upon the ground that the matters alleged in the bill of complaint

Page 499

were insufficient in fact and in law to constitute a valid suit in equity against the defendant or to entitle plaintiff to the relief demanded. The motion was sustained and thereafter, no request for leave to amend having been made, the bill was dismissed. Defendant appealed to this court from the judgment of dismissal and we affirmed. Kithcart v. Metropolitan Life Ins. Co., 8 Cir., 88 F.2d 407. In 1938, plaintiff filed two additional suits against defendant and three individuals named as its agents, in the state court to set aside the same judgment for further relief. These were removed to the Federal court, where they were later voluntarily dismissed. The present suit in equity was filed April 18, 1940, again seeking to set aside the original judgment of May 18, 1933. Pleadings in all the previous suits were made part of the present bill of complaint by reference or otherwise. Defendant filed motion to dismiss on the grounds (1) that the complaint failed to state any claim upon which relief...

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