Christensen v. Christensen
| Decision Date | 22 July 1926 |
| Citation | 14 F.2d 475 |
| Parties | CHRISTENSEN v. CHRISTENSEN et al. |
| Court | U.S. District Court — Southern District of New York |
Falk & Orleans, of New York City (Ilo Orleans and Adolph Kaufman, both of New York City, of counsel), for complainant.
Lind & Marks, of New York City, for defendant Carlo Gerhard Waldemar Christensen.
This is a suit brought under section 19 of the World War Veterans' Act of June 7, 1924 (Comp. St. § 9127½-19). The individual defendant demurs to the bill of complaint, on the ground that it fails to set forth facts sufficient to constitute a cause of action, and that this court has no jurisdiction over the person of the defendant or the subject-matter of the suit.
The complaint alleges that the complainant and his brother George Christensen were soldiers in the United States Army in the late war, and each procured certificates of war risk insurance; that on March 20, 1918, the complainant, his brother George, and their brother Carlo, the defendant, entered into an oral agreement whereby the complainant and George promised to designate the defendant Carlo as beneficiary in the certificates of war risk insurance upon their respective lives, on the promise by the defendant Carlo that he would receive the proceeds payable under such certificates at the death of either of his said brothers for the benefit of himself and whichever of the brothers should survive. The brother George designated Carlo as sole beneficiary in his certificate of insurance, and was thereafter killed in action overseas. On or about December 18, 1920, the defendant Carlo signed a writing in alleged confirmation of his oral agreement, and declaring that his name was used in the certificate of insurance as beneficiary, both on behalf of himself and the complainant herein, and that moneys owing and becoming due to him were the moneys both of the complainant and himself equally.
The first objection made is that the complainant is suing in the wrong district. That is a question of the proper venue, which is cured by a general appearance. A demurrer on the ground of lack of jurisdiction of the person, when accompanied by a general demurrer because the complaint states no cause of action, amounts to a general appearance, and waives the objection to jurisdiction based on the ground that the complainant sues in the wrong district. Edgell v. Felder, 84 F. 69, 28 C. C. A. 382.
The objection on the merits is twofold: First, that the case does not come within section 19 of the World War Veterans' Act of 1924 (Comp. St. § 9127½-19), the material provisions of which are as follows:
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