Ex parte Elba Bank & Trust Co.

• Decision Date: 19 April 1917
• Docket Number: 4 Div. 697
• Citation: 199 Ala. 651,75 So. 294
• Parties: Ex parte ELBA BANK & TRUST CO.
• Court: Alabama Supreme Court

75 So. 294

199 Ala. 651

Ex parte ELBA BANK & TRUST CO.

4 Div. 697

Supreme Court of Alabama

April 19, 1917

Original petition for mandamus on the part of the Elba Bank & Trust Company to require Hon. A.B. Foster, as circuit judge, to set aside an order permitting Eva C. Marsh to interpose a demand for jury trial. Writ granted.

W.W Sanders, of Elba, for appellant.

J.A Carnley, of Enterprise, for appellee.

McCLELLAN J.

On February 26, 1916, the petitioner, the Elba Bank & Trust Company, instituted its action against the Mutual Life Insurance Company to recover the amount of an insurance policy which had been matured by the death of the insured Tavner Marsh. Neither the plaintiff nor the original defendant made demand for a trial by jury. The beneficiary named in the policy was Eva C. Marsh, the widow. The plaintiff's claim of ownership of the policy and its proceeds was as assignee or transferee. The insurance company paid the proceeds of policy into the court, suggesting, in accordance with Code, § 6050, that the widow claimed the proceeds of the policy. Whereupon, the widow not having voluntarily appeared and made herself a party defendant, the court, in further observance of the statute cited, on the 10th day of July, 1916, ordered issued, and issued, its summons to the suggested claimant to appear at the next term of the court and make herself a party defendant in the cause. The process was served on Mrs. Marsh on the 21st day of July 1916. On the 21st day of August, 1916, she filed a paper, the first paragraph of which will efficiently contribute to a statement of the basis of the question presented by this petition for the writ of mandamus to the judge of the circuit court, and which is as follows:

"And now comes the said Eva C. Marsh, the party who was notified to appear and make herself a party to this cause, on interpleader by the defendant, the Mutual Life Insurance Company of New York, and, not waiving any rights which she may test by way of demurrer to the bill of interpleader, she makes answer thereto, and incorporates therein demurrers to said bill of interpleader as part of her said answer, as follows: ***"

Following extended recitals and averments of facts and circumstances conceived to be appropriate to be interposed as an answer the claimant filed a demurrer to the insurance company's "bill of interpleader." The claimant made no demand for a trial by jury, either on her answer or demurrer, or otherwise, until more than four months after the service of the mentioned summons to her. At the January, 1917, term of the court, the demurrer interposed by the claimant to the "bill of interpleader" was overruled, and a formal order was entered in the cause substituting Mrs. Marsh as the party defendant in the place of the insurance company, and discharging the company upon its payment of the costs in the cause up to that date. Thereupon the court called for trial the case of the bank against the substituted defendant, and in due course entered the following order:

"On this the 2d day of January, 1917, comes the plaintiff and the substituted defendant, by their attorneys, respectively, and the plaintiff announced ready for trial, and the defendant announced not ready. The court thereupon required the defendant to enter upon the trial of the cause unless a jury trial be desired and demanded, the defendant insisting that she had 30 days in which to make demand for a jury trial, and the court, upon the objection of the defendant, required either that the cause be tried immediately without a jury, there being no

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