Reliance Life Ins. Co v. Bank

• Decision Date: 10 July 1928
• Docket Number: (No. 18975.)
• Citation: 143 S.E. 924,38 Ga.App. 349
• Parties: RELIANCE LIFE INS. CO. v. CAPITAL NAT. BANK.
• Court: Georgia Court of Appeals

38 Ga.App. 349

143 S.E. 924

RELIANCE LIFE INS. CO.

v.CAPITAL NAT. BANK.

(No. 18975.)

Court of Appeals of Georgia,

Division No. 1.

July 10, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by the Capital National Bank against the Reliance Life Insurance Company. Defendant's motion to remove cause to federal court was denied, and defendant brings error. Affirmed.

Howell, Heyman & Bolding, of Atlanta, for

plaintiff In error.

Dorsey, Shelton & Dorsey and Ralph H. Pharr, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

LUKE, J. [1, 2] Capital National Bank brought suit in the superior court of Fulton county against the Reliance Insurance Company upon a life insurance policy issued upon the life of one Davis, now deceased. Under the terms of the policy, the beneficiary was to be paid in 120 equal monthly installments of $1,000 each. The suit is to recover the first two installments. The beneficiary is a resident of the state of Georgia, and the insurance company is not a resident of this state. Upon the ground of diverse citizenship, the insurance company, by proper petition in the superior court, sets up the diverse citizenship of the parties, and alleges that, "while the present action is to recover only the first two installments, aggregating only $2,000, the actual matter in dispute is the right to recover $120,000 in 120 equal monthly installments of $1,000 each."

The insurance company further contends, in its petition to remove the case, that, if the plaintiff can recover the first two installments, it could, by virtue of the recovery in the present action, recover each and every one of the future or subsequent installments, as the judgment in the present action would be res adjudicata as to all suits brought on subsequent installments; and that for these reasons the value of the rights involved, exclusive of interest and costs, exceeds the sum of $3,000. The judge of the superior court, upon the hearing of the petition to remove the cause, denied the petition, upon the ground that the case was not by law removable, and retained the case in Fulton superior court for trial.

Held: The court did not err in denying the motion to remove the case. It is the amount sued for in the petition which controls, and not the amount which may be subsequently sued for under the terms of the contract. Upon the petition to remove the court can only consider the suit as filed in order to determine...