Mutual Life Ins. Co. of New York v. Egeline, 4130W.

Decision Date07 November 1939
Docket NumberNo. 4130W.,4130W.
PartiesMUTUAL LIFE INS. CO. OF NEW YORK v. EGELINE et al.
CourtU.S. District Court — Northern District of California

Knight, Boland & Riordan, of San Francisco, Cal., for plaintiff.

Carter, Barrett, Finley & Carlton, of Redding, Cal., for defendant S. W. Egeline.

J. Everett Barr, of Yreka, Cal., for defendant Mazie Egeline.

WELSH, District Judge.

Plaintiff, The Mutual Life Insurance Company of New York, a corporation, on August 9, 1939, filed herein its bill of interpleader against the above named defendants alleging that the defendant, S. W. Egeline, is a citizen of Oregon, and that the defendant, Mazie Egeline, is a citizen of California residing in Siskiyou County; that each of the defendants are claiming the proceeds of a policy of life insurance in an amount exceeding $500 issued by plaintiff on the life of Robert Egeline, deceased; that the defendant, S. W. Egeline, has brought suit against the plaintiff and the defendant, Mazie Egeline, to recover on the policy, in the Superior Court of the State of California, in and for the County of Siskiyou; That plaintiff is in doubt as to which claimant is entitled to the proceeds of the policy and "fears that it will be subjected to more than one suit upon said policy. * *"

Plaintiff deposited the amount owing under the policy with the clerk of this court, and a temporary restraining order was issued enjoining the defendants from prosecuting any suit to collect on the policy until further order of this court.

The motion now before the Court is to dissolve the restraining order and dismiss the bill in interpleader.

It was shown by affidavit and a certified copy of letters of administration of the estate of Robert E. Egeline, deceased, filed in support of the motion now before the Court, that S. W. Egeline has never been, and is not now, the administrator of the estate of the deceased insured; and that the estate of the deceased insured makes no claim to any interest in the benefits of the life insurance policy. Accordingly, on October 9, 1939, counsel for plaintiff stipulated to a dismissal of the bill of interpleader as to the administrator of the estate of Robert Egeline, deceased, and it is so ordered. And so the only two claimants to the proceeds of the policy are S. W. Egeline, a brother of decedent, and Mazie Egeline, divorced wife of decedent, both of whom are joined as parties, with the plaintiff, in the suit pending in Siskiyou County at the time of the filing of the bill of interpleader in this court.

A motion to dismiss and to dissolve the restraining order was made by defendants, S. W. Egeline and Mazie Egeline, and submitted on October 2, 1939. Previously, a similar motion on the same grounds was made by these defendants, followed by an amended motion of defendant, S. W. Egeline. Due, however, to a defect in the form of the previous motions in failing to state with particularity the grounds thereof (Rule 7, Subdiv. b(1) Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c), and because of an insufficiency in the time of service of the notices of hearing the previous motions and amended motion, a new motion, in proper form and upon due notice, was made. This is the motion which was submitted October 2, 1939. The previous motions were heard on September 25, 1939. At that time, the motion of the defendant, Mazie Egeline, was denied because of failure to appear in support thereof. The motion and amended motion of the defendant, S. W. Egeline, was argued and submitted on the understanding that a new motion on the same grounds was being made by the defendant and would be submitted on October 2, 1939, and thereupon considered together with this defendant's previous motions.

Plaintiff claims that the motion to dismiss and to dissolve the restraining order is not properly before the court, asserting that Rule 12(g) of the Federal Rules of Civil Procedure has been violated, so far as the last motion, submitted October 2, 1939, is concerned; and that since the previous motions are defective, they must be stricken from the files.

Rule 12 of the Federal Rules of Civil Procedure provides for the presentation by a party of certain defenses or objections by motion prior to the filing of his responsive pleading. Objections to a complaint, or bill, for want of jurisdiction or for failure to state a claim upon which relief can be granted, are included in Rule 12 within that class of objections which a party may make by motion before filing his responsive pleading. Subdivision (g) of this rule then provides: "A party who makes a motion under this rule may join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on any of the defenses or objections so omitted * * *."

It is apparent from a reading of the foregoing provision that it was not intended to preclude a party who has given insufficient notice of his motion from making a corrective motion, before any ruling has been had on his defective motion, designed merely to cure a technical defect in the previous motion made on the same grounds, and to bring it properly before the court.

Further, if plaintiff is correct in its position that all motions prior to the last were defective and subject to be stricken from the files, the situation then is the same as if no motion had been made save that one which was submitted in due form on October 2, 1939.

In addition, it appears that when the motions, submitted on September 25, 1939, were heard on that day, counsel for plaintiff did not rest on the defects in the notice of motion and in the time of serving the notice, as objections to the motions being heard; but consented to and did argue them on the merits. In so doing, plaintiff waived these technical objections.

The Court therefore concludes that the motion of S. W. Egeline to dismiss this bill of interpleader and dissolve the restraining order heretofore made is now properly before the Court, and will be determined on its merits.

Defendant's motion to dismiss should be granted for want of equity. The allegations of the verified bill of interpleader show, it is true, all of the necessary facts requisite under Title 28, Subdiv. (26) of Sec. 41 of the United States Codes, 28 U.S.C.A. § 41(26), to give this court jurisdiction over this cause. But it not only...

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