Griesa v. Mutual Life Ins. Co. of New York

• Decision Date: 19 November 1908
• Docket Number: 2,922.
• Parties: GRIESA et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Eighth Circuit

165 F. 48

GRIESA et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 2,922.

United States Court of Appeals, Eighth Circuit.

November 19, 1908

Syllabus by the Court

When upon a hearing in equity in the Circuit Court, in a suit the parties to which include all the parties to an action at law pending in that court, an interlocutory order is granted 'staying' further proceedings in the law action, on the theory that the two cases embrace a controversy which should be litigated to a final and complete determination in the suit in equity, to the exclusion of any proceedings at law, the order, although not using the technical words 'restrain and enjoin,' and not in terms directed against the plaintiffs in the action at law, is in purpose and effect an order granting an injunction, within the meaning of section 7 of the act creating the Circuit Court of Appeals (Act March 3, 1891, c. 517, 26 Stat. 828 (U.S. Comp St. 1901, p. 550)), as amended by Act April 14, 1906, c 1627, 34 Stat. 116 (U.S. Comp. St. Supp. 1907, p. 208), and an appeal from such order lies to that court.

C. F. Hutchings and George J. Barker (Samuel A. Riggs, on the brief), for appellants.

A. C. Mitchell and John S. Dean (Leonard S. Ferry, Thomas F. Doran. and S.D. Bishop, on the brief), for appellee.

Before VAN DEVANTER, Circuit Judge, and PURDY, District Judge.

VAN DEVANTER, Circuit Judge.

Briefly stated, the facts material to the decision of the question here under consideration are these: By a policy of insurance issued upon the life of Lucius H. Perkins of Lawrence, Kan., the Mutual Life Insurance Company of New York promised that upon his death it would issue to his executors 100 interest-bearing gold coin bonds, each of the denomination of $1,000 and payable in 20 years, or, if the executors should so elect, would pay to them the cash value of the bonds, to be computed at $1,305 for each bond.

Within six months after the issuance of the policy, the insured died intestate, leaving a widow and three sons, for whose benefit his will contained certain special instructions respecting the bonds named in the policy. After his death the insurance company brought a suit in equity in the Circuit Court against the executors, widow and sons to obtain, inter alia, a cancellation of the policy; it being alleged in the bill that the issuance of the policy was fraudulently procured by the insured, that death by suicide within one year after the issuance of the policy was not within the risk covered thereby, that the insured died by suicide, that indisputable evidence of such suicide could be procured through an exhumation of his body and an autopsy thereon, and that these could be obtained only through the exercise of the powers of a court of equity. Thereafter the executors began an action at law in the Circuit Court against the insurance company to recover the cash value of the bonds, predicating the right to do so upon the company's denial of all liability under the policy, and also upon an election by the executors to take cash in lieu of bonds. In the suit in equity the defendants demurred to the bill upon the ground that the complainant had a plain, adequate, and complete remedy at law, and they also interposed a plea to the bill, alleging therein the pendency of the action at law and that, in the defense of that action, the complainant could obtain the full benefit of all the matters stated in the bill. The complainant then made in the suit in equity an application for 'an order staying all further proceedings' in the action at law, 'for the reason that the exact issues involved' in that action 'are involved in and will be determined in this suit in equity, and because this court of equity, having rightfully acquired jurisdiction of the parties and the subject-matter of the controversy, for the purpose of granting a certain necessary and indispensable equitable relief, will retain such jurisdiction to do complete justice between the parties and grant full relief. ' This application, the demurrer, and the plea were heard at the same time, and the hearing resulted in the following interlocutory order or decree:

'The demurrer and plea to the bill of complaint herein, and also the application of the complainant for an order staying proceedings in action at law No. 8,603 on the records of this court, having been heretofore argued and submitted to the court with leave to the respective parties to file briefs, now, on this 25th day of June, 1908, the court having carefully considered the same, and being well advised in the premises, doth order, adjudge, and decree that the defendants' demurrer and plea to the bill heretofore filed herein be, and they are each overruled and denied. It is further ordered, adjudged, and decreed that the motion of complainant to stay further proceedings in law action No. 8,603 on the records of this court be, and the same is, sustained.'

From this order or decree the defendants appealed, and the insurance company now moves to dismiss the appeal, claiming that such an order or decree is not appealable. The controlling statute is section 7 of the act creating the Circuit Courts of Appeals (Act March 3, 1891, c. 517, 26 Stat. 828 (U.S. Comp. St. 1901, p. 550)), as amended by Act April 14, 1906, c. 1627, 34 Stat. 116 (U.S. Comp. St. Supp. 1907, p. 208), which reads as follows:

'That where, upon a hearing in equity in a District or in a Circuit Court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed by an interlocutory order or decree, in any cause an appeal may be taken from such interlocutory order or decree granting or continuing such injunction, or appointing such receiver, to the Circuit

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