Mutual Life Insurance Co. v. Marsh
| Decision Date | 07 March 1932 |
| Docket Number | 177 |
| Citation | 47 S.W.2d 585,185 Ark. 332 |
| Parties | MUTUAL LIFE INSURANCE COMPANY v. MARSH |
| Court | Arkansas Supreme Court |
Appeal from Nevada Circuit Court; Dexter Bush, Judge; reversed.
Judgment reversed and cause remanded.
Frederick L. Allen and Rose, Hemingway, Cantrell & Loughborough, for appellant.
Martin & Martin, for appellee.
The appellee brought suit on an insurance policy for $ 3,000 and 12 per cent. penalty and attorney's fees.
The appellant is a citizen of the State of New York and the appellee is a citizen of the State of Arkansas. The appellant filed its petition for removal to the Federal court, alleging diversity of citizenship, and that the amount in controversy exceeds the sum of $ 3,000.
The appellant filed a bond and prayed that the court proceed no further, and that the cause be removed to the United States District Court.
The circuit court denied the petition, and appellant filed answer, the case proceeded to trial, and there was a judgment for $ 3,000 and $ 360 penalty, and a $ 500 attorney's fee. Motion for a new trial was filed and overruled, and an appeal granted to the Supreme Court.
The only question we find it necessary to determine is, whether the cause was removable to the Federal court. The Federal statute provides: "Any suit of a civil nature at law or in equity, arising under the Constitution or laws of the United States, or treaties made under their authority, of which the district courts of the United States are given original jurisdiction in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district.
"Any other suit of a civil nature at law or in equity, of which the district courts of the United States are given jurisdiction, in any State court may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of the State." Title 28, § 71, U.S Code, Annotated.
It is also provided by the Federal statute: "The district courts shall have original jurisdiction as follows: (1) Of all suits of a civil nature at common law or in equity where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $ 3,000, and is between citizens of a State and foreign States, citizens or subjects." Title 28, § 41, U.S. Code, Annotated.
The diversity of citizenship is not disputed, but appellee contends that the cause was not removable because, he says, under the decisions of the Federal court, § 6155 of Crawford & Moses' Digest, is unconstitutional. The contention is that, while this court has held the statute valid, the Federal court has held that it is void.
If this section is valid, it necessarily follows that the amount in controversy exceeds $ 3,000, exclusive of interest and costs. He sues for $ 3,000 and 12 per cent. damages and attorney's fees. Section 6155, supra, provides that the attorney's fees shall be taxed as costs, but it does not provide that the 12 per cent. penalty shall be taxed as costs. Therefore the amount in controversy was $ 3,360.
Appellee calls attention to Standard Accident Ins. Co. v. Rossi, 35 F.2d 667. That case does not hold that the Arkansas statute for penalty and attorney's fees is invalid, but the court said in that case: ...
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