Dugas v. American Surety Co. of New York, 7961.

• Decision Date: 09 April 1936
• Docket Number: No. 7961.,7961.
• Parties: DUGAS v. AMERICAN SURETY CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Fifth Circuit

82 F.2d 953 (1936)

DUGAS v. AMERICAN SURETY CO. OF NEW YORK.^*

No. 7961.

Circuit Court of Appeals, Fifth Circuit.

April 9, 1936.

James J. Landry and I. E. Uzzo, both of New Orleans, La., for appellant.

Harry McCall, of New Orleans, La., for appellee.

Before FOSTER, SIBLEY, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

On February 12, 1930, the appellee, American Surety Company of New York, executed as surety a bond in the sum of $20,000, Lumberman's Reciprocal Association, a Texas corporation, being the principal in that bond, which, as provided by a Louisiana statute, was conditioned in effect that said principal shall make prompt payment of all claims arising and accruing to any person during the term of said bond, by virtue of any policy or policies of described classes of insurance issued by it during the term of the bond upon the life or person of any citizen of the state of Louisiana. That bond was given to enable the principal in it to do business in Louisiana, and is herein referred to as the qualifying bond. On June 6, 1931, the appellee filed in the court below a bill of interpleader under the statute 28 U.S.C.A. § 41 (26). That bill contained allegations to the following effect: The business of said Lumberman's Reciprocal Association was chiefly the writing of workmen's compensation insurance. On July 31, 1930, a named Texas court appointed a named person receiver of said association, and said association is still in the hands of said receiver. Claims against said association's qualifying bond are far in excess of the amount of said bond. Some of the claimants now are, and at all times mentioned in the bill were, citizens of named states other than Louisiana, and some of these claimants now are, and at all times mentioned in the bill were, citizens of the state of Louisiana. Two suits against petitioner (appellee) on said qualifying bond are pending in Louisiana state courts. In one of these suits, brought by Etienne Dugas (appellant), judgment in favor of the plaintiff therein was rendered on April 14, 1931, requiring the defendant therein (the appellee) to pay to appellant $20 a week for a period not to exceed 300 weeks. Appellant appealed from the judgment, giving a suspensive appeal bond in the sum of $10,000, the New York Casualty Company being the surety in that bond, which contained the following condition: "Now the condition of the above obligation is such that the above bounden American Surety Company of New York shall prosecute diligently its appeal, and shall satisfy whatever judgment may be rendered against it or that the same shall be satisfied by the proceeds of its estate, real or personal, if it be cast in the appeal, otherwise that the said New York Casualty Company, State of New York, shall be liable in its place."

Appellee disclaimed any interest in the amount of its qualifying bond, except to pay the amount of the same to persons lawfully entitled thereto, and appellee prayed permission to pay into court the amount of its said bond for distribution among those lawfully entitled thereto after the payment of all lawful costs. A list of claims against said bond was attached to the bill. That bill contained prayers: That appellee be authorized and directed to deposit in the registry of the court the sum of $20,000; that appellant and other claimants be cited to interplead and settle between themselves their rights or claims to the amount of said bond; that appellants and other defendants in said bill be restrained and enjoined from instituting or prosecuting in any state court, or in any other federal court, any suit on account of any right or claim growing out of said bond; and that appellee be released from all further liability on account of said bond, upon a determination being had as to the amount due thereon, and upon the payment by appellee of a sum, if any be found due thereon, over and above the fund paid into the registry of the court. Pursuant to an order made by the court upon the filing of that bill, appellee paid into the registry of the court the sum of $20,000. Appellant appeared in that cause, filed an exception to the bill of complaint therein, a plea in bar, and an answer. On September 19, 1932, the court entered a decree in that cause which adjudged: That appellee, by the deposit of $20,000 made in that cause, complied with all obligations under or on account of said qualifying bond, or under or on account of any similar previous bonds, and that appellee "be and it is hereby released and discharged from any and all further liability on account of said bonds or any of them"; and "that all defendants hereby be and they hereby are perpetually restrained and enjoined from instituting or prosecuting in any State Court, or in any other Federal Court, any suit against said American Surety Company of New York on account of any right or claim growing out of said bond, or any similar previous bond." There was no appeal from the final decree rendered in the interpleader suit, and that decree remained in full force and effect. By a provision of that decree a special master was appointed to determine the manner in which the balance of the fund remaining on deposit in the registry of the court, after deducting the amounts of costs and attorney's fees allowed by the court, shall be distributed between the defendants in the cause. The special master's report showed that the claim of the appellant was allowed in the sum of $4,160.68, and that appellant's pro rata share of the fund in court for distribution among the several claimants was $1,141.29. Counsel for the various claimants, including appellant, entered into a written stipulation acquiescing in that report of the special master; whereupon the court confirmed that report and ordered the distribution of the fund in court in accordance with that report.

On March 7, 1934, appellant filed in a Louisiana state court a suit against the New York Casualty Company, the surety on the above-mentioned appeal bond given by appellee, seeking the recovery of the sum of $3,019.39, for an alleged breach of the condition of that bond, that sum being the amount, $4,160.68, of appellant's claim allowed by the special master and the sum, $1,141.29, received by the appellant under the court's order of distribution. On March 14, 1934, appellant filed an amended and supplemental petition reducing the amount claimed by him in said suit to $2,999. The court in which that suit was brought maintained an exception of prematurity, and dismissed that suit. From that judgment appellant appealed to the Supreme Court of Louisiana, which court on January 7, 1935, annulled the judgment appealed from, overruled the plea of prematurity, and remanded the case for further proceedings. Dugas v. New York Casualty Co., 181 La. 322, 159 So. 572. On January 29, 1935, appellee filed a supplemental petition in the above-mentioned interpleader suit. That pleading recited what had occurred in the interpleader suit and in the suit brought by appellant against the New York Casualty Company. That supplementary petition named as parties defendant appellant and Maurice J. Hartson, civil sheriff of the parish of Orleans, state of Louisiana. That pleading alleged: "Maurice J. Hartson, a resident of this Parish and State, was and is Civil Sheriff of the Parish of Orleans, State of Louisiana, and as such is the official charged with the duty of executing the decrees and orders of the Civil District Court for the said Parish, and for that reason plaintiff desires that he be made a party hereto in order fully to guarantee the effectiveness of the relief herein sought." By exception interposed by appellant the right of appellee to maintain the supplementary petition was challenged on the grounds that the court ceased to have jurisdiction to make further orders or decrees in the interpleader suit upon the expiration of the term at which the final decree therein was rendered; on the ground that the amount involved is less than $3,000; and on the ground that the injunction sought was forbidden by statute, 28 U.S.C.A. § 379. After those exceptions were overruled, appellant filed an answer on the merits. On a submission of the cause on the supplemental petition and on the above-mentioned decree of September 19, 1932, the court ordered the issuance of a preliminary injunction as prayed for in said supplemental petition. By stipulation of counsel, the cause was submitted for final decree on said supplemental petition, upon the pleadings filed by appellant, and upon the same evidence as was produced at the hearing of the application for a preliminary injunction applied for in said supplemental petition, and allowed by the court. Thereupon the court made findings of facts and conclusions of law, and rendered a decree which adjudged: "That an injunction issue herein permanently enjoining and restraining Etienne Dugas, his attorneys, agents and representatives from taking any steps to institute, prosecute or execute any judgment in any suit or proceeding (and in particular in proceeding entitled Etienne Dugas v. New York Casualty Company, No. 206,399 of the docket of the Civil District Court for the Parish of Orleans, State of Louisiana) in any State Court or in any other Federal Court, on any claim growing out of or connected with the appeal bond executed by New York Casualty Company as surety and American Surety Company of New York as principal in the sum of Ten Thousand Dollars ($10,000.00) and filed in connection with the appeal taken by American Surety Company of New York from judgment dated April 14, 1931, in suit entitled Etienne Dugas v. American Surety Company of New York, No. 188,642 of the docket of the Civil District Court for the Parish of Orleans, State of Louisiana; and permanently enjoining and...