Rosenbush v. Westchester Fire Ins. Co.

• Decision Date: 25 May 1917
• Citation: 116 N.E. 396,227 Mass. 41
• Parties: ROSENBUSH v. WESTCHESTER FIRE INS. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 41

116 N.E. 396

ROSENBUSH

v.WESTCHESTER FIRE INS. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1917.

Appeal from Superior Court, Suffolk County; Loranus E. Hitchcock, Judge.

Action by Al. A. Rosenbush against the Westchester Fire Insurance Company, in which one Plowman filed pleadings as claimant to the fund in controversy. From an order or judgment discontinuing the action as to the insurance company, plaintiff and the claimant appeal. Appeal of each party dismissed.L. M. Friedman and Swift, Friedman & Atherton, all of Boston, for appellant Rosenbush.

Brown & Came, of Boston, for appellee.

RUGG, C. J.

This is an action at law upon a policy of fire insurance, the plaintiff claiming, by an assignment from the insured, the amount due on the policy arising from a loss by fire. The defendant appeared seasonably. But it never filed an answer. Its claim for a trial by jury was not a joinder of any issue.

That could be done only by answer or other appropriate pleading. The defendant thereafter filed an ‘interpleader,’ the substance of which was that it had issued the policy and a loss had occurred as alleged in the declaration, and that the amount of loss due on the policy had been determined by appraisal as provided in the policy; that proof of loss had been made in compliance with the policy, and that claim had been made upon the defendant by one Plowman, the trustee in bankruptcy of the insured for the amount due on the policy, on the ground that the assignment to the plaintiff was void; that the defendant had no interest in the subject matter of the controversy; that there was no dispute as to the amount due from the defendant; and praying that Plowman be summoned and made a party defendant and his rights determined; that the defendant hold the money to await final judgment, and that it be discharged, and for its costs. Plowman thereupon came into court and filed appropriate pleadings as claimant to the funds, trial was had upon issues raised by him, and a verdict rendered in favor of the plaintiff. Exceptions by the claimant were saved and the time for filing them extended from time to time until October 7, 1916. It does not appear that the plaintiff disputed any issue raised by the defendant by its interpleader, or that anything went to the jury upon that matter. Indeed, the contrary is to be inferred from the recitals in the ‘memorandum and order’ filed by the judge. The defendant after verdict filed a motion stating that it had paid into court ‘the amount which the plaintiff and the claimant respectively seek to recover, together with interest thereon at 6 per cent. computed from April 19, 1914, the date agreed upon to date,’ and praying that the action be discontinued as to it and for its costs. On July 12, 1916, there was entered that which was entitled ‘memorandum and order.’ This recited that it appeared that the defendant had paid into court the amount held by it subject to the determination of the court as to the party entitled to it, and ‘ordered’ that the action ‘be discontinued as to the defendant,’ with further orders as to costs. The plaintiff undertook to appeal from this order, which had been entered on July 12, on October 14 following.

There is ground for the contention that the order of July 12, 1916, was a judgment within the meaning of R. L. c. 173, § 96, as amended by St. 1906, c. 342, and St. 1910, c. 555, §...