National Fire Ins. Co. v. Sanders

• Decision Date: 15 June 1929
• Docket Number: No. 75.,75.
• Citation: 33 F.2d 157
• Parties: NATIONAL FIRE INS. CO. v. SANDERS et al.
• Court: New York District Court

33 F.2d 157 (1929)

NATIONAL FIRE INS. CO. v. SANDERS et al.

No. 75.

District Court, E. D. Texas, Texarkana Division.

June 15, 1929.

Thompson, Knight, Baker & Harris, of Dallas, Tex., for plaintiff.

Winfrey & Lane, of Dallas, Tex., for defendant W. D. Sanders.

Cantey, Hanger & McMahon, of Fort Worth, Tex., for defendant Armour Fertilizer Works.

Rodgers & Rodgers, of Texarkana, Tex., for intervener.

ESTES, District Judge.

The plaintiff herein, a fire insurance company, acknowledging an indebtedness to W. D. Sanders for loss occasioned by fire, has filed this bill in equity, based upon section 24, subd. 26, of the Judicial Code (28 USCA § 41(26), which authorizes insurance companies to file such pleading where there are two or more adverse claimants, citizens of different states, to an indebtedness thus created.

The allegations are that the company issued to Sanders a policy of fire insurance on his dwelling in De Kalb, Tex., a town located within this district, which dwelling was thereafter destroyed by fire; that on July 18, 1927, after the loss had been adjusted, the Armour Fertilizer Works filed a suit against Sanders in a municipal court of Cook county, Ill., upon an alleged indebtedness due it from Sanders, and procured a writ of attachment to be served upon the insurance company in connection therewith, Sanders being cited by publication; that judgment has been rendered against Sanders on such constructive service, and the attachment sustained; that Sanders has advised the company that the policy covered his homestead, and that under the constitution and laws of the state of Texas the proceeds of it are exempt from seizure, and, further, that he will attempt to hold the plaintiff for the payment of the proceeds to him, even though the Armour Fertilizer Works may prevail in the Illinois suit.

Mrs. Sanders has intervened in the case, alleging that the homestead in question was the community property of herself and her husband, and that the proceeds arising from the policy are exempt under the Texas law.

The Armour Fertilizer Works has filed a motion to dismiss the bill, upon the ground, first, that the facts alleged are not sufficient to justify the application of the doctrine or principle of interpleader — that is, that the controversy disclosed is not one between adverse claimants to specific funds, but involves the question of the right of a creditor of Sanders to seize the funds, and, under the circumstances outlined, appropriate them to the...