Guerin v. Guerin, 14773.

• Citation: 239 F.2d 909
• Decision Date: 28 March 1956
• Docket Number: No. 14773.,14773.
• Parties: Bruce GUERIN, Executor of the Estate of Paul J. Guerin, Deceased, Appellant, v. Alma Pauline GUERIN, and The Prudential Insurance Company of America, a Corporation, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

239 F.2d 909 (1956)

Bruce GUERIN, Executor of the Estate of Paul J. Guerin, Deceased, Appellant, v. Alma Pauline GUERIN, and The Prudential Insurance Company of America, a Corporation, Appellees.

No. 14773.

United States Court of Appeals Ninth Circuit.

March 28, 1956.

Maury, Larsen & Hunt, George R. Maury, Los Angeles, Cal., for appellant.

Myron W. Curzon, Adams, Duque & Hazeltine, James S. Cline, Los Angeles, Cal., for appellees.

Before STEPHENS, FEE and CHAMBERS, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

An action in interpleader was brought on June 16, 1953, by The Prudential Insurance Company, naming as defendants Bruce Guerin, as Executor of the Estate of Paul J. Guerin, deceased, here appellant, Alma Pauline Guerin, here appellee, and several other defendants. The complaint alleged that, pursuant to an application therefor, Prudential issued to Alma Guerin a Life Annuity Contract, wherein $246.00 was payable on April 15, 1952, and on the fifteenth day of each month thereafter until termination, to Alma Guerin, if living, and to others in event of her death. Payments were made to Alma Guerin up to and including January 15, 1953, when conflicting claims were made upon Prudential and payments were stopped. Prudential tendered $1,230.00, the amount due at the filing of the complaint, and offered to pay into court the future installments at the due date of each. Since Prudential claimed to be an indifferent stakeholder, it prayed defendants be required to interplead and each to answer the complaint, that, upon payment of the money due and each installment into court, Prudential should be discharged of further liability with reference thereto "pending the future order of this Court with respect to the payment of future monthly annuity installments becoming due as above noted." A provisional and permanent injunction was asked against other litigation by defendants and particularly an action by the executor then pending in the state court against Prudential, Alma Guerin and others.

It is further prayed: "That upon a final hearing herein that plaintiff be dismissed hence with its costs incurred, including a reasonable attorney's fee, to be paid out of the interpleader funds." There is a further prayer that an order to show cause issue to defendants to show why they should not interplead and why the injunction should not be granted and made permanent.

A separate answer and cross-complaint by Bruce Guerin, as Executor, was filed, which sets up affirmative allegations against Prudential and Alma Guerin to the effect that, to the knowledge of Prudential, the funds used to purchase the annuity were impressed with a trust in the hands of Alma Guerin. The basis for jurisdiction of this affirmative proceeding is diversity of citizenship. It is alleged that Bruce Guerin is a citizen of California, Prudential a corporation of New Jersey, and Alma Guerin a citizen of Arizona. Attached to the answer and cross-complaint is the second amended complaint in the state court, wherein Bruce Guerin, as Executor, is plaintiff, and Alma Guerin and Prudential are defendants, and wherein there is allegation of the fraudulent conversion of the money belonging to the estate and that Prudential knew or had reason to know thereof, and prays among other things that Prudential be declared to hold in trust the community property interest in and to the sum of $90,000.00, or the proceeds thereof, and "that defendants and each of them be ordered to deliver to the estate of Paul J. Guerin any and all properties or assets which the Court finds said defendants hold in trust for the benefit of the estate of Paul J. Guerin, deceased."

A hearing was had upon the question of whether the preliminary injunction be made permanent, upon which the court ordered that defendants be enjoined pendente lite from commencing or prosecuting any action against Prudential except the action in the state court by Bruce Guerin, Executor, vs. Alma Guerin, above referred to. As a condition to the restraining order, Prudential was to pay into the registry the installments as these became due and to give bond therefor.

Pre-trial proceedings set for September 29, 1953, were placed off calendar subject to being reset. "All parties shall not be required to plead to any pleading until 20 days after written notice to do so." Other items not disposed of were continued until further order.

An order was then entered in the following terms:

"This cause came on regularly to be heard in open court, on plaintiff\'s order to show cause heretofore filed, in the courtroom of the Honorable William C. Mathes, Judge Presiding, on October 13, 1953, Messrs. Adams, Duque & Hazeltine by Henry Duque, Esq., and Waller Taylor II, Esq., appearing for plaintiff; Messrs. John S. Hunt and George R. Maury by George R. Maury, Esq., appearing for defendant Bruce Guerin, as Executor of the Estate of Paul J. Guerin, Deceased, and Bruce Guerin; J. Marion Wright, Esq., and J. E. Simpson, Esq., by J. E. Simpson, Esq., appearing for defendant Alma Pauline Guerin, also known as Alma P. Guerin; and no appearances being made on behalf of defendants Marjorie Guerin Ludwicki, Individually and as Guardian Ad Litem of Lawrence Allen Ludwicki, a minor, Albert Guerin, Della Wadlington, Alphonse Guerin, Eva Guerin Arbour, also known as Eva Bonin Guerin, C. F. Guerin, also known as Costello Guerin, also known as Cass Guerin; and an Affidavit re Responsive Pleadings by Defendants and Request for Default Judgment having been duly submitted to the within Court pursuant to Rule 55 of Federal Rules of Civil Procedure; and default having been duly entered by the Clerk of the within Court against said defendants Marjorie Guerin Ludwicki, Individually and as Guardian Ad Litem of Lawrence Allen Ludwicki, a minor, Albert Guerin, Della Wadlington, Alphonse Guerin, Eva Guerin Arbour, also known as Eva Bonin Guerin, C. F. Guerin, also known as Costello Guerin, also known as Cass Guerin; and it being shown to the satisfaction of the Court that plaintiff has deposited with the Clerk of the within Court the sum of Two Thousand Two Hundred Fourteen Dollars ($2,214.00) as the proceeds due and owing to date of this order in the within action under Life Annuity Contract — Guaranteed Return of Purchase Price in Installments No. A 90269, issued by plaintiff to Alma P. Guerin, also known as Alma Pauline Guerin, dated March 15, 1952; and that plaintiff has offered to deposit with the Clerk of this Court the future monthly annuity payments as they shall become due under the terms and conditions of said Life Annuity Contract and has offered to post bond, if required by further order of this Court so to do, payable to the Clerk of this Court in such amount and with such surety as this Court may deem proper, conditioned upon the compliance by plaintiff with the future order of this Court with respect to such future annuity payments; and it appearing to the Court that this is a proper cause for interpleader and that plaintiff is entitled to an order as prayed for in plaintiff\'s complaint on file herein, except as otherwise hereinafter ordered, and good cause appearing therefor.

"It is Hereby Ordered, Adjudged and Decreed as Follows:

"1. That the default of defendants Marjorie Guerin Ludwicki, Individually and as Guardian Ad Litem of Lawrence Allen Ludwicki, a minor, Albert Guerin, Della Wadlington, Alphonse Guerin, Eva Guerin Arbour, also known as Eva Bonin Guerin, and C. F. Guerin, also known as Costello Guerin, also

...