Aetna Ins. Co. v. Evans

• Decision Date: 09 March 1909
• Citation: 49 So. 57,57 Fla. 569
• Parties: AETNA INS. CO. v. EVANS et al.
• Court: Florida Supreme Court

49 So. 57

57 Fla. 569

AETNA INS. CO. v. EVANS et al.

Florida Supreme Court

March 9, 1909

In Banc. Appeal from Circuit Court, Leon County; John W. Malone Judge.

Bill by the AEtna Insurance Company against R. J. Evans, trustee in bankruptcy, and others. Decree for defendants, and complainant appeals. Affirmed.

COUNSEL

Raney & Oven, for appellant.

R. W Williams, for appellees.

OPINION

PER CURIAM.

The bill in this cause was filed by the appellant against the appellees. There was decree for the defendants, and the complainant appealed. Decree affirmed, but without prejudice to the right of the appellant to proceed in the federal courts as it may be advised.

CONCURRING

SHACKLEFORD J.

Such a diversity of opinion prevails among the members of the court upon the points presented by this appeal that all I shall attempt to do herein is to set forth my individual views.

On the 13th day of January, 1908, the appellant filed its bill in chancery in the circuit court for Leon county against R. J. Evans, trustee in bankruptcy of the estate of R. E. Hightower and Gilbert Hartsfield, partners lately doing business under the firm name and style of the Tallahassee Mercantile Company, and certain other named defendants, some of whom are alleged therein to be judgment creditors of the Tallahassee Mercantile Company, but there are no allegations as to what claim, right, title, or interest, if any, certain other defendants have in the property described in the bill, and we are not informed by the bill why such persons were made parties defendant.

I shall not undertake to set out the allegations of the bill in full, but only such portions thereof as are necessary to render this opinion intelligible as to the points decided. It is alleged that on the 23d day of March, 1906, the appellant issued an insurance policy to R. E. Hightower, whereby his stock of merchandise was insured against loss or damage by fire to an amount not exceeding $750, for the period of one year, which policy was properly assigned to the Tallahassee Mercantile Company on the 29th day of October, 1906; that also on said last-named date the appellant also issued an insurance policy to the Tallahassee Mercantile Company, whereby their stock of merchandise was insured against loss or damage by fire to an amount not exceeding $500, for the period of one year; that on the 7th day of November, 1906, such stock of merchandise was partially and materially damaged by fire, and that afterwards an adjustment of such loss was made, by which the appellant became liable to theTallahassee Mercantile Company in the sum of $1,111.11 under the two polices. The bill also contains allegations to the effect that certain other named insurance companies had also issued policies to the Tallahassee Mercantile Company for certain designated amounts, and that adjustments had been made by which such companies became liable to the insured for the payment of certain specified sums, but we are not concerned with these matters in this opinion. It is further alleged that certain of the defendants instituted actions at law against the Tallahassee Mercantile Company in the circuit court for Leon county, and also caused writs of garnishment to be issued and served upon the appellant, which actions resulted in judgments being rendered therein against the Tallahassee Mercantile Company as well as against the appellant; the respective amounts and dates of the judgments against the latter being as follows: In the sum of $97.65 in favor of Kingan & Co., on the 22d day of March, 1907; in the sum of $307.37 in favor of Wertheimer-Swarts Shoe Company, on the 23d day of March, 1907; in the sum of $634.63 in favor of Levy Bros. on the 22d day of March, 1907; and in the sum of $58.01 in favor of Tallahassee Grocery Company, on the 22d day of March, 1907. The bill also contains allegations as to the issuance and service of writs of garnishment upon certain other named insurance companies and the entry of judgments against such other garnishees for certain specified amounts. The bill contains further allegations to the effect that a petition in bankruptcy was filed in the United States District Court for the Northern District of Florida on the 27th day of March, 1907, praying that R. E. Hightower and Gilbert Hartsfield, partners as above set forth, should be adjudged a bankrupt, and that on the 2d day of May, 1907, an order was entered by such court adjudging the Tallahassee Mercantile Company a bankrupt, and on the 24th day of June, 1907, R. J. Evans was appointed trustee of the estate of such bankrupt and had duly qualified as such; that the appellant had been notified by such trustee that he claimed the sum of $1,111.11 which was due to such bankrupt from the appellant as an asset of the bankrupt's estate, and demanded the payment of such amount to him, while, on the other hand, the judgment creditors named above claimed and demanded the payment of their respective judgments, that the appellant had endeavored to get the joint consent of such trustee and of the plaintiffs in garnishment and in judgment, where judgments in garnishment have been rendered, to pay the amount of money due from the appellant to the bankrupt to such trustee, to be held by him subject to the adjudication of the bankruptcy court as to who was entitled to the same, but had failed to secure the consent of all of such parties. There is a further allegation that 'your orator is consequently compelled for its protection to bring this its bill of complaint against the defendants for the purpose of having the protection of the decree of this honorable court in the premises.' It is also alleged that the appellant 'is not personally interested in said moneys nor otherwise interested than to the extent of making payment thereof to whomsoever of said defendants may be entitled to the same, and this your orator desires to do, but safely is not able to do without the advice and direction of this honorable court in a proceeding of the nature of this suit, complainant not being able to decide who is entitled thereto.' There is an additional allegation that the appellant has not colluded with any of the defendants in any manner, but has filed the bill 'of its own free will and solely to avoid being molested and injured touching the matters contained and set forth in said bill.'

The prayers of the bill are as follows: 'To the end, therefore, that the said defendants may interplead and settle their rights as to the said sum of money, and that your orator may be at liberty to pay the same into this court, which payment your orator has been and is now willing and ready and desires and now offers to do, and that said defendants who have, as above stated, obtained judgments in garnishment against your orator, may be enjoined and restrained from further proceedings against your orator upon said judgments, and those who have not obtained judgments may be restrained from further proceedings against your orator in their said garnishment proceedings, and that your orator upon payment into this court of said sum of money, and procuring the said defendants to interplead according to the course of this court, may be decreed to be discharged from all liability to said defendants and each and every of them in the premises, and may have its proper costs herein, and that your orator may have such other and further relief as may be proper in the premises.'

Some of the defendants filed answers to the bill, also incorporating demurrers therein, while the other defendants, with the exception of the C. B. Van Deman Company, a corporation, filed answers, in which, either expressly or impliedly, they admitted the allegations of the bill. The C. B. Van Deman Company appears to have filed nothing. The demurrers incorporated in the answers question the equity of the bill.

On the 4th day of May, 1908, the appellant set down the demurrers for argument, and on the 13th day of June, 1908, the appellant filed an application for leave to amend its bill as follows:

'That plaintiffs in garnishment have never caused to be issued writs of execution or other process for the enforcement of said judgments, and that within a few days after the entry of such judgments, and on or about March 25th or 26th, Geo. B. Perkins, attorney for the British America Assurance Company, St. Paul Fire & Marine Insurance Company, and Georgia Home Insurance Company, above named, was notified by John L. Neeley, a legally licensed and practicing attorney in the courts of Florida and the federal courts of the United States for the Northern District of Florida, that he, in behalf of a number of creditors of said Tallahassee Mercantile Company, aforesaid, would at once by reason and on account of the entry of said garnishment judgments file an application in the United States bankruptcy court in and for the Northern District of Florida, to have said Tallahassee Mercantile Company adjudged bankrupts, and that the complainant and the other insurance companies must not pay over said insurance money, as aforesaid, upon said garnishment judgments, because said insurance money would be claimed as asset of said bankrupt estate, and that said Perkins immediately thereafter being so notified by said Neeley informed and notified Geo. P. Raney, solicitor for complainant above named, of such warning from said Neeley. That on March 27, 1907, your complainant's solicitor, George P. Raney, received from Thomas F. McGourin, the United States marshal in and for the Northern District of Florida in bankruptcy, a telegram reading as follows:

"Pensacola, Fla. 3-27-1907.

"Under special warrant in bankruptcy issued to me this day, by the U.S. District Court, I require to hold for me, or my order, any and

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