Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. of Brooklyn
| Decision Date | 16 April 1894 |
| Citation | 61 F. 199 |
| Parties | WILCOX & GIBBS GUANO CO. v. PHOENIX INS. CO. OF BROOKLYN. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Bryan & Bryan, for the motion.
Trenholm Rhett & Miller, opposed.
This is a motion to strike out a part of an answer constituting a further defense to a complaint. The plaintiff brought its action in the court of common pleas for Charleston county upon a policy of insurance, against the defendant. The summons and complaint were served 27th January, 1894. On the 6th February, 1894, Hon. D. A. Townsend, a circuit judge of the state of South Carolina, granted an extension of time to defendant, within which to file its answer, to 10th March 1894. On the 8th day of March, of the same month, the defendant filed its petition, with bond for removal into this court. On 17th March it presented this petition to the state court, and by its order the petition and bond were approved. On 23d March the plaintiff filed the record in this court, and made a motion to remand, which was refused. The defendant filed the record in this court on the first day of the present term. The removal having been perfected, the cause proceeds in this court as if it originated here. Henning v. Telegraph Co., 40 F. 658; Thompson v. Railroad Co., 6 Wall. 134.
The action is at law. It appears that on 17th February, 1894 before the petition for removal, and before answering the complaint, the defendant in this suit filed an original complaint in the court of common pleas for Charleston county, setting forth the fact that, when the policy in this case sued on was originally issued, it had attached to it a coinsurance clause, the result of which was that the insured and insurer shared proportionately the risk insured against, and that on the first renewal of the policy the same clause was attached, but that on the third renewal of the policy it was either attached, and subsequently became detached, or it was inadvertently omitted. The complaint prayed that the policy be reformed, and that in the mean time the suit on the policy be stayed. The defendant has filed its answer in this court, which sets up as a further defense the pendency of this last-named complaint in the state court, its prayer for a reformation of the policy and for an injunction, and ends with a prayer in the answer that all proceedings in the present cause be stayed until the determination of the action in the ...
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... ... Fed. Cas. No. 14,401; Union Mut. Life Ins. Co. v ... University of Chicago, 6 Fed. 443, ... Marshall v. Otto, 59 F. 249, 252; Wilcox & Gibbs ... Guano Co. v. Phoenix Ins. Co., 61 ... ...
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Galloway v. General Motors Acceptance Corporation, 4475.
...for the District Courts of the United States, rule 81, Subdivision (c), 28 U.S.C.A. following section 723c; Wilcox & Gibbs Guano Co. v. Phoenix Insurance Co., C.C., 61 F. 199, 200; Henning v. Western Union Telegraph Co., C.C., 40 F. 658. While the general rule is to the effect that one may ......
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