Moreno v. United States, No. 3665.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtMAGRUDER, MAHONEY, and WOODBURY, Circuit
Citation120 F.2d 128
Decision Date06 June 1941
Docket NumberNo. 3665.
PartiesMORENO v. UNITED STATES et al.

120 F.2d 128 (1941)

MORENO
v.
UNITED STATES et al.

No. 3665.

Circuit Court of Appeals, First Circuit.

June 6, 1941.


120 F.2d 129

Frederic Gilbert Bauer, of Boston, Mass., for appellant.

E. L. Twomey, of Boston, Mass. (Theodore Chase, of Boston, Mass., on the brief), for appellee Marjorie E. Bathurst.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

Therese M. Moreno brought suit against the United States in the District Court of the United States for the District of Massachusetts seeking to recover the proceeds of a policy of war risk insurance. Jurisdiction was rested on § 19 of the World War Veterans' Act, 1924, as amended, 38 U.S.C.A. § 445.

The complaint alleged that the plaintiff was a resident of Massachusetts; that the policy of insurance, taken out in 1921 by her husband, Major Moreno, originally designated her as beneficiary; that late in 1935, a few months before his death, the insured designated as substituted beneficiary Marjorie Murphy Bathurst, "a friend"; that at that time Major Moreno "was enfeebled both mentally and physically by disease and said transfer was obtained by the undue influence of said Marjorie Murphy Bathurst and was in violation of public policy and good morals"; that the United States has declined to recognize the plaintiff as lawful claimant to the proceeds, but on the contrary has ruled that Mrs. Bathurst is entitled thereto; that the proceeds are still in the hands of the United States.

In view of the allegations of the complaint, the United States moved to summon in and join Mrs. Bathurst as a third-party defendant. Such special interpleader is provided for in § 19 of the World War Veterans' Act, 1924, as amended, 38 U.S. C.A. § 445, as follows:

"All persons having or claiming to have an interest in such insurance may be made parties to such suit, and such as are not inhabitants of or found within the district in which suit is brought may be brought in by order of the court to be served personally or by publication or in such other reasonable manner as the court may direct."

The motion was granted, and a summons was personally served upon Mrs. Bathurst in New Jersey, the state of her residence.

Subsequently, on January 29, 1940, the United States filed its answer, admitting liability on the policy but denying that the change of beneficiary was effectuated under the circumstances alleged in the complaint. On January 30, 1940, Mrs. Bathurst filed an answer denying the allegation of undue influence, praying that the complaint be dismissed and that she, Mrs. Bathurst, be awarded judgment against the United States for the balance due under the policy.

On September 26, 1940, the plaintiff filed an amendment to her complaint as follows:

"Under the provisions of Rule 14 (a), Federal Rules of Civil Procedure 28 U.S. C.A. following section 723c inasmuch as the case is now virtually a suit between the plaintiff and the third party defendant Marjorie E. Bathurst, the plaintiff files the following amendment by way of additional paragraphs to her complaint:

"12. The plaintiff says the third party defendant Marjorie E. Bathurst between the first day of October, 1934 and the last day of October, 1935 wrongfully and intentionally alienated and destroyed the...

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18 practice notes
  • Dyer v. Eastern Trust and Banking Company, Civ. No. 1872.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • December 30, 1971
    ...(such service not authorized). Neither the Supreme Court nor the First Circuit has ruled on the question. But see Moreno v. United States, 120 F.2d 128 (1st Cir....
  • Bertozzi v. King Louie Intern., Inc., Civ. A. No. 76-0158.
    • United States
    • U.S. District Court — District of Rhode Island
    • September 13, 1976
    ...service under federal antitrust laws). 3 The First Circuit had occasion to address a somewhat similar issue in Moreno v. United States, 120 F.2d 128 (1st Cir. 1941), but that decision involved the reach of extraterritorial service of process to implead a nonresident third-party defendant to......
  • Clark v. Taylor, No. 257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 15, 1947
    ...Kasishke v. Baker, 10 Cir., 144 F.2d 384, certiorari denied 325 U.S. 856, 65 S.Ct. 1185, 89 L.Ed. 1976; Moreno v. United States, 1 Cir., 120 F.2d 128, 130; Hanney v. Franklin Fire Ins. Co., 9 Cir., 142 F.2d 10a The distinction between the two fields seems to be recognized in Clark, Code Ple......
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...limits of effective service. Munter v. Weil Corset Co., 261 U.S. 276, 43 S.Ct. 347, 67 L.Ed. 652; Moreno v. United States, 1 Cir., 120 F.2d 128. Although Congress has the power to authorize a suit under federal law to be brought in any United States district court and to provide that proces......
  • Request a trial to view additional results
18 cases
  • Dyer v. Eastern Trust and Banking Company, Civ. No. 1872.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • December 30, 1971
    ...(such service not authorized). Neither the Supreme Court nor the First Circuit has ruled on the question. But see Moreno v. United States, 120 F.2d 128 (1st Cir....
  • Bertozzi v. King Louie Intern., Inc., Civ. A. No. 76-0158.
    • United States
    • U.S. District Court — District of Rhode Island
    • September 13, 1976
    ...service under federal antitrust laws). 3 The First Circuit had occasion to address a somewhat similar issue in Moreno v. United States, 120 F.2d 128 (1st Cir. 1941), but that decision involved the reach of extraterritorial service of process to implead a nonresident third-party defendant to......
  • Clark v. Taylor, No. 257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 15, 1947
    ...Kasishke v. Baker, 10 Cir., 144 F.2d 384, certiorari denied 325 U.S. 856, 65 S.Ct. 1185, 89 L.Ed. 1976; Moreno v. United States, 1 Cir., 120 F.2d 128, 130; Hanney v. Franklin Fire Ins. Co., 9 Cir., 142 F.2d 10a The distinction between the two fields seems to be recognized in Clark, Code Ple......
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...limits of effective service. Munter v. Weil Corset Co., 261 U.S. 276, 43 S.Ct. 347, 67 L.Ed. 652; Moreno v. United States, 1 Cir., 120 F.2d 128. Although Congress has the power to authorize a suit under federal law to be brought in any United States district court and to provide that proces......
  • Request a trial to view additional results

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