New York Life Ins. Co. v. Panagiotopoulos, 3041.
| Decision Date | 29 October 1935 |
| Docket Number | No. 3041.,3041. |
| Citation | 80 F.2d 136 |
| Parties | NEW YORK LIFE INS. CO. v. PANAGIOTOPOULOS. |
| Court | U.S. Court of Appeals — First Circuit |
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F. H. Nash, of Boston, Mass. (Louis H. Cooke, of New York City, and Richard Wait, of Boston, Mass., on the brief), for appellant.
Harris J. Booras, of Boston, Mass. (John A. Edgerly, of Boston, Mass., on the brief), for appellee.
Before BINGHAM and MORTON, Circuit Judges, and PETERS, District Judge.
The decree of April 3, 1935, as of January 7, 1935, transferring the case to the equity side of the court, provided "that the issues raised by the equitable defense shall first be tried, and the case be transferred to the equity docket, and in the meantime that proceedings at law be restrained."
The transfer of the case to the equity side of the court took place on January 7, 1935, and thereafter the case stood "as though an independent suit in equity was brought and the action at law enjoined" People of Porto Rico v. Livingston 47 F.(2d) 712, 720; and this would be so under section 274b of the Judicial Code, as amended, even though the decree of April 3, 1935, as of January 7, 1935, had not specifically restrained the action at law. Enelow v. New York Life Ins. Co., 293 U.S. 379, 383, 55 S.Ct. 310, 311, 79 L.Ed. 440. It is there said:
The decree of Judge Brewster on April 3, 1935, as of March 14, 1935, vacating the order of January 7, 1935, was likewise appealable under section 129 of the Judicial Code, as amended (28 U.S. C.A. § 227), as it was an interlocutory order or decree dissolving an injunction, and the appeal therefrom, taken by the defendant within thirty days from the entry of the order or decree, as was done in this case, suspended, pending the appeal to this court, the order or decree vacating the order of January 7, and left the order or decree of January 7, 1935, restraining the proceedings at law, in force. Newton v. Consolidated Gas Co., 258 U.S. 165, 177, 42 S.Ct. 264, 66 L.Ed. 538.
The proceedings at law being enjoined by the order or decree of January 7, 1935, and the transfer of the case to equity under section 274b (28 U.S.C.A. § 398), and that injunction being in existence from the time the appeal was taken, Judge McLellan acted without right in undertaking to pass upon the questions raised in the action at law before the appeal to this court was disposed of, and his order of April 3, 1935, sustaining the replication or demurrer to the amended answer and the final judgment entered by him on May 6, 1935, are null and void.
The appellant contends, first, that the two-year period within which the policy could be contested by it was extended and kept alive due to the facts alleged in the last paragraph of its amended answer (which are admitted by the plaintiff's replication or demurrer); and, this being so, that it was open to it to allege and show that the policy was canceled, as it prayed in its answer, because of the fraudulent misrepresentations and statements made by the insured in his application, which application was made a part of the contract of insurance.
If the two-year limitation within which the defendant insurance company could make a contest had expired when the answer or so-called equitable defense to the suit on the policy was filed, it is conceded that the defendant cannot prevail either at law or in equity. If, on the other hand, it be assumed that the two-year limitation had not expired, due to the fact that the...
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