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

• Decision Date: 24 May 1943
• Citation: 135 F.2d 675
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. HOLLY, Judge, et al.
• Court: U.S. Court of Appeals — Seventh Circuit

135 F.2d 675 (1943)

MUTUAL LIFE INS. CO. OF NEW YORK v. HOLLY, Judge, et al.

No. ___.

Circuit Court of Appeals, Seventh Circuit.

May 24, 1943.

Geo. B. Christensen, of Chicago, Ill., for petitioner.

Julius S. Neale and Bernard W. Vinissky, both of Chicago, Ill., for respondent.

Before EVANS, KERNER, and MINTON, Circuit Judges.

PER CURIAM.

On December 30, 1941, Virginia B. Hamberg filed a complaint in the Circuit Court of Cook County, Illinois, in which she sued the defendant upon a policy of life insurance issued on the life of her late husband. On January 31, 1942, and within the time provided by law, the defendant insurance company filed its petition and bond for removal of the cause of action to the United States District Court for the Northern District of Illinois, Eastern Division. Thereafter on March 12, 1942, by leave of court said plaintiff, Virginia B. Hamberg, filed an amended complaint making parties plaintiff other parties who were named beneficiaries in the policy. On March 23, 1942, the insurance company filed an answer to the amended complaint and a counterclaim for cancellation of the policy because of material false and fraudulent misrepresentations made by the assured in his application for insurance. On the 9th of April, 1942, the plaintiffs filed answer to the counterclaim. On October 19, 1942, the plaintiffs filed a motion in the District Court to remand the cause to the Circuit Court of Cook County, Illinois. On November 9, 1942, the District Court denied the plaintiffs' motion to remand.

The matter came on for trial before a jury, and on January 19, 1943, a verdict was returned for the defendant insurance company, and on the same date the court entered judgment for the defendant insurance company upon said verdict.

On the 28th of January, 1943, the plaintiffs filed a motion for new trial and motion to vacate the judgment, set aside the verdict, and to remand the cause to the Circuit Court of Cook County, Illinois. This motion to remand was granted, and on March 22, 1943, the judgment theretofore entered in favor of the insurance company was vacated and the cause was remanded to the Circuit Court of Cook County, Illinois, where it is now pending.

The insurance company has lodged in the office of the Clerk of this Court its motion for leave to file a petition for writ of mandamus and the petition for said writ. The would-be petitioner, hereinafter referred to as the insurance company, seeks a writ of mandamus against Judge Holly, commanding him to vacate his order of March 22, 1943, remanding the cause to the Circuit Court of Cook County, Illinois, and for other relief; and, second, for a writ of injunction against the plaintiffs in the proceedings in the court below, enjoining them from taking any further action in the Circuit Court of Cook County, Illinois.

It is admitted by the insurance company that the action of Judge Holly in remanding the cause to the Circuit Court of Cook County is not reviewable by us on appeal.¹ From this statute, it is quite clear that there is not and could not be any appeal to this Court from the order of Judge Holly remanding said cause to the Circuit Court of Cook County. While the insurance company admits that this direct attack cannot be made upon the action of Judge Holly, it seeks by indirection to reach his action, and to void it by collateral attack by...