Reply Brief for Respondent — Di Giovanni v. Camden

Supreme Court brief1935

Ask Donna

What actually matters in this document.

Text

Supreme Court of the United States

OCTOBER TERM, 1935.

PETE DI GIOVANNI AND MARY DI GIOVANNI,

PETITIONERS,

VS.

CAMDEN FIRE INSURANCE ASSOCIATION, A

CORPORATION, RESPONDENT.

RESPONDENT'S REPLY BRIEF.

Fenton Hume,

Kansas City, Missouri,

7 Attorney for Respondent.

Water A. Raymonp and 15

Hume & Raymonp,

Kansas City, Missouri,

Of Counsel.

—

©. . Wed. c., @ WEST OTH ST.. KANSAS CITY. MO.

Z CC

Brief Summary of Argument

Point I. The primary object sought in respondent's

bill is cancellation of these two polieies of insur-

ance. This is a matter of original equity juris-

diction and can be defeated only by showing that

there is, an adequate remedy at law ..........

Point II. Unless relief is granted here in equity,

two suits at law will be required to settle the is-

sues. It will be less expensive and more conveni-

ent to both parties to try the issues of plaintiff’s

bill in one action in the federal court ........

Point III. Respondent properly joined the policy

for $3,000.00 and the policy for $1,500.00 in one

bill in equity. The arnt amount was,

therefore, involved areas l

A. Respondent’s bill * 4 conspiracy.

This constitutes an exception to the general

rule. It entitles respondent to have the sums

of the two policies aggregated for the pur-

pose of determining jurisdiction ..........

B. Respondent had the right to maintain one

action in equity in the federal court for can- .

cellation of both policies. There was, there-

fore, involved the aggregate of these two pol-

icies or $4,500.00 and more than the nne

7 jurisdictional amount

Point IV. Respondent has no „ remedy on the law

side of the federal court which is the test as to

whether there is an adequate rémedy at law pre-

venting the exercise of equitable jurisdiction by 4

federal court. :

Vr a Iwpex

Seriatim Answer to Petitioners’ Points—

Point A. The circuit court of appeals properly

overruled petitioners’ motion to complete the rec-

ord ..

Point B. The circuit court of appeals properly

held that complainant could maintain its bill in

equity because it had no adequate . at law

in the federal court ............ ae

Point C. The circuit court of 1 3

held there was equitable jurisdiction for cancella-

tion reenforeed by the ability to avoid a threat-

ened multiplicity of e

Point D. The bill alleged the face value of the two

policies was $3,000.00 and $1,500.00 respectively.

The bill alleged petitioners were claiming the

total loss and demanding the full face value of the

| policies. The jurisdictional amount was, there-

eee dees e eee ese

Point E. The circuit court of appeals properly

held the twd claims arising under the two policies

of insurance could be tied together for the ‘pur-

pose of ascertaining the amount involved for juris-

re ee eee eee eee ee

Argument )

Point I. The primary object sought in respondent’s

bill is the cancellation of these two policies of

insurance. This is a matter of original equity

jurisdiction and can be defeated only by showing

that there is an adequate remedy at law ....

Point II. Unless relief is granted here in equity

two suits at law will be required to settle the is-

sues. It will be less expensive and more con-

venient to both parties to try the issues of N

tiff’s bill in one action in the federal court .

Point III. Respondent properly joined the *

for 83,000.00 and the policy for $1,500.00 in one

Inns

dill in equity. thé neee w amount was

therefore involved sews

A. Respondent's bill charges a conspiracy.

is constitutes an exception to the general

rule and entitles respondeng to have the sums

of the two policies aggrega for the pur-

pose of determining jurisdiction .......:.

B. Respondent had the ri ho maintain one

action in equity — = ral court for the

cancellation of „Policies. There was,

therefore, X | — of these two

policies for $4,500.00 and more than the

- requisite jurisdictional amount .

Point IV. Respondent o remedy on the law

side of the federal ee, phic is the test of

whether there is an adéq remedy af law pre-

. venting the exercise of . jurisdietion by a

federal court en e l dew

Seriatim Answer to Petitioners’ Peinte—

Point A. The circuit court of appeals properly

overruled petitioners’ motion to n the

eee est eee soe esse

Point B. The circuit court of * properly

held that complainant could maintain its bill in

equity because it had no Nr remedy at ew

1. a See Pepe

Point C. The .cireuit court of appeals properly

held there was equitable jurisdiction for can-

cellation reinforced by the ability to avoid a

threatened multiplicity of suits

Point D. The bill alleged the face value af the two

policies was $3,000.00 and $1,500.00 respectively.

The bill alleged petitioners were claiming a

total loss and demanding the full face value of

‘the policies. The jurisdictional amount .

cdherefore, involved .........:....... pededeosen ä

Iv INDEX

Point E. The circuit court of appeals properly

held the two claims arising under the two

policies of insurance could be tied together for

the purpose of ascertaining the amount involved

for jurisdictional purposes 60

* —

Allore vs. Jewell, 94 U. S. 506, 511, 24 L, Ra. 260,

r reer ap BEA: 2,13

American Mills 22 vs. American Sutety Co.,

260 U. S. 360, 364, 43 S. Ct. 149, 1511 7,39

American Mutual Liability Insurance 1 vs.

McDonaugh, 61 F. (2d) 558, 563 (U. S. C. C. A. 7th)

(Certiorari denied 288 U. S. 602) 8, 45

Baltimore & Ohio Southwestern Railroad Company vs.

United States, 220 U. S. 94, 106, 31 S. Ct. 368, 371 4, 27

Banker vs. Ford Motor Company, 69 Fed. (2a) 665,

665 (C. C. A. 3rd) . 5 2 ,

Berber vs. Barber, 21 ee 591, 16 i. Ea. 226, ;

FP 8 5, 832

Barry vs. Edmunds, € 8. Ct. 501, 116 U. S. 550, 559 . .10, 57

Beacher vs. Pan-American Life Insurance Company, 73

Fed. (2d) 263, 264 (C. C. A. 5) Ra ae 11, 59

Bodkin vs. Edwards, 256 U. . 221; 223, 41 S. Ct.

D ᷣͤ ... alawustccecasenel 52

Bowley vs. Chicago 4 N. W. Ry. Co., 68 Fed. » (38)

527

— vs. — — Company,

287 U. 8. 415, 418, 53 S. Ct. 198, 19 . 6, 35

Cable vs. United States Life Insurance 19

Artner. Nn ei 43

City Bank Farmers Trost Company va. Schnader, 291

U. S. 24, 29, 54 8. Ct. 259, 261 5, 8, 34, 4

- Lypex Vv

City of Dothan, Ala., vs: First National Bank of Do-

than, @1 Fed. (2d) 685, U 4,27

City of Walla Walla vs. n 172 U. S. 1, 12, 19 8.

Ct. 77, 82 . „

Dawson vs. be Distillers * 1 Com- g

pany, 255 U. S. 288, 296, 41 S. Ct. 272, 275 8, 46

Davis vs. Wakelee, 156 U. S. 680, 688, 5 S. Ct. 555,

— ̃ •· dees kbs ͤͤ 5, 31

First State Bank vs. r R. I. & p. R. Oo, 63

Fed. (2d) 585, 590, 591 (C. C. A. Sth) 1

Fish vs. Kennamer, 37 Fed. (2d) 243, 247 (C. C.

// ²ĩ˙iꝛà A ⅛ »ʃ— .-. ·•mm ·¶ sees: 5, 30

Fulbright vs. Phoenix Insurance Company, 329 Mo.

207, 44 S. W. (2d) 115 8 55

Grand Chute vs. Winnegar, 15 Wall. (U. 8.) 373,

D ̃ ’ mA. 3 10, 56

Geneva Furniture Manufacturing Company vs. 8.

Karpen and Bros., 238 U. S. 254, 35 S. Ct.

WOT nc cdcuawstencevevsecstes 4, 28

Hale vs. Allinson, 188 U. 8. 56, 72, 77, 23 8. Ct.

,, ̃˙ . 3,17

Healy vs. 1 292 U. 8. 263, 271. 54 8. Ct.

700, 704 7, 10, 36, 58

Henrietta Mills vs. " Batherford Counts, 281 U. 8.

121, 126, 50 8. Ct. 270, 277ĩ⁊ã27 0 eee, 5, 8, 32, 45

Herrel vs. St. Louis-San Francisco Ry. Co., 324 Mo.

38, 23 S. W. (2d) 102 (en banc) - 55

Hunt vs. New York Cotton Exchange, 205 J. 8.

322, 333, 27 8. Ct. 529, 532 10, 58

Julian vs. Central Trust Company, 193 U. S. 93,

112, 24 8. Ct. 399, 407 ' 7, 87

Keaton vs. Little, 34 Fed. (2d) 396, 398 (C. C. A.

r eee ese

Kimel vs. Missouri State Life Insurance Company,

71 Fed. (2d) 921, 924 (C. C. A. 10) 4, 27

oe | _ Iypex

Leavenworth Savings and Trust Company vs. New- |

- man, 23 Fed. (2d) 835, 838 (C. C. A. 8) 2 . 2

Liberty Oil. Company vs. Condon National Bank,

260 U. S. 235, 242, 43 S. Ct. 118, 111. 7538

Looney vs. Eastern Texas R. Co., 247 U. 8. 2h, |

r 7, 38

Louisville, N. A. & C. Ry. Co. vs. Louisville Trust

— Company, 174 U. S. 552, 567, 19 8. Ct. 817,

. ff ̃ĩͤꝝ vv. ̃ĩͤ ee ae eae: 2, 12

Lynch vs. United States, 292 U. 8. 571, 588, 54 8.

CCC 6, 35

McDaniel vs. Traylor, 196 U. S. 415, 427, 25 8.

Ct. 369, 37 F 24

Me Daniel vs. Traylor, 212 U. 8. 428 433, 29 S. Ct.

r 4

Metropolitan Life Insurance Company ys. Dunne,

2 Fed. Supp. 165, 166 (D. C. S. D. N. V.)) 4, 27

Merriam vs. Saalfield, 241 U. S. 22, 28, 38 S. Ct. 477 52

New York Dock Company vs. * 274 U. 8. 117,

r duensceasesdens ees > 6, 35

New York Life Insurance Company vs. Jones, 2 Fed.

Supp. I. e. 600, (D. C. N. E. D. N. C. 4, 26

New York Life Insurance Company vs. Miller, (C.

R ⅛ ũ ‚ 2,12

Oelriche vs. Williams, 15 Wall. 211, 228, 21 L. Ed.

% Y ⁵˙ſ!yĩ ĩ ĩ ĩ˙% (»» 2, 15

Pennsylvania vs. West Virginia, 262 U. S. 553, 593,

III 7, 40

f Providers’ = Life Insurance ey of Phila-

L delphia 70 Fed. (2d) 863, I. c. 864

(C. 0 “4th = Baye F nnen 4.24

rut in he W. * & R. Co. vs. Ryan, 181 U. S. 409,

* eee . 10, 59

Rich va. Braxton, 138 U. & 373, 405, 15 S. Ct

1000! 1 900 eee — —— 44 2, 13

( ˙ ˙ñU b ˙ wm ⁰wr •⁰⁰ !.

—

Inpex | vn

Risty vs. Chicago, R. I. & P. Ry. Co., 270 U. 8

378, 388, 46 S. Ct. 236, 240 ........ 5, 8, 9, 33, 44, 46

Schunk vs. Moline, Milburn & Stoddard. Company,

13 S. Ct. 416, 147 U. S. 500, 504 ... . 10, 56

Shane vs. West Coast Life Insurance Company, 73

eee eee 2, 12

Smyth vs. Ames, 169 U. S. 466, 516, 18 S. Ct. 418, 422

/d een 2, 5, 8, 15, 33, 44

Sdwereign Camp, W. O. W., vs. O’Neill, 266 U. S.

Ss & YF SR e. ess eee 4,21

Standard Oil Company of New Mexico vs. Standard

Oil Company of California, 56 Fed. (2d) 973, 976

r W—»»W»»˙˙ . 8, 41

State of Alabama vs. State of Arizona, mi U. S. 286,

— be eee 9

State of Kansas vs. State of Colorado, 185 U. 8. 125,

, ˙ V. 2, 7, 40

Stifel's Union Brewing Co. vs. Saxy, 273 Mo. 159,

W e eee. ueeeneese 54

Swift & Co. vs. United States, 276 U. 8. 311, 326,

D AAA — * 7541

Terrace vs. Thompson, 263 U. S. 197, 214, 44 8. Ct.

n r 5 2.8519

Tyler vs. Savage, 143 U. S. 79, 95, 12 S. Ct. 340, 345. 2. 13

2 Pac. Ry: Co. vs. Chicago, R. I. & P. a Co., 163

U. S. 564, 600, 16 S. Ct. 1173, 1187 2,14

Vicksburg Water Works Company vs. Wan 185

U. S. 65, 82, -22 8. Ct. 585, 592 ........ 8, 41

Watson vs. Sutherland, 5 Wall. 74, 18 L. Ed. 580, 582 2, 14

Wells Fargo and Company vs. Taylor, 254 U. 8. 175,

188, 41 8. Ct. 98, 9 7, 38

wg vs. Rymer, 18 S. Ct. 295, 169 U. S. 115, 128 10

t vs. Insurance Company, 19 Fed. (2d) 117 (C.

A. 8) 376 U. 8. 602 . PES ae 7,36

vi IxDRx

Srarurxs

Federal Equity Rule 2 1 4, 28

36 Statute 1163, 28 U. S. C. A., Section 34 38

36 Statute 1162, 28 U. S. C. A., Section 379 ‘

CCT

36 Statute 1163 (Judicial Code, Section 267) 7, 8, 45

Section 3 9 § 2s De Pee W, 29, 42

Text Books mS

21 C. J., Section 50, page 77 . 50

Supreme Court of the United States

OCTOBER TERM, 1935.

No. 28.

PETE DI GIOVANNI AND MARY DI GIOVANNI, -

PETITIONERS,

VS.

CAMDEN FIRE INSURANCE ASSOCIATION, A

CORPORATION, RESPONDENT.

- STATEMENT.

‘Petitioners’ statement js complete and we make no

objection thereto. However, we respectfully suggest that

the opinion of the. circuit court of appeals presents a

somewhat clearer and more concise statement of the

facts (Tr. pp. 12 to 14) also 75 Fed. (2d) 808.

BRIEF SUMMARY OF ARGUMENT.

POINT I.

The — Object Sought in Respondent’s Bill Is Can-

cellation of These Two Policies of Insurance. This Is a

Matter of Original Equity Jurisdiction and Can Be

Defeated Only by Showing That There Is an Adequate

Remedy at Law. :

Cancellation is. a remedy available only in equity.

There being stated in the bill a cause of action for can-

cellation, this case comes within the equity jurisdiction

of the gourt. New York. Life Insurance Company v.

Miller, (C. C. A. 8) 73 Fed. (2d) 350; Shane v. West Coast

Life Insurance Company, 73 Fed. (2d) 681, 683 (C.

C. A. 10); Louisville N., A. d C. Ry. Co. v. Louisville

Trust Company, 174 U. S. 552, 567, 19 S. Ct. 817, 822; Rich

v. Braxton, 158 U. S. 375, 405, 15 8. Ct. 1006, 1017;

Allore v. Jewell, 94 U. S. 506, 511, 24 L. Ed. 260, 264;

Tyler v. Savage, 143 U. S. 79, 95, 12 S. Ct. 340, 345;

Union Pac. Ry. Company v. Chicago, R. I. & P. Ry. Co.,

163 U. S. 564, 600, 16 S. Ct. 1173, 1187; Watson v. Suther-

land, 5 Wall. 74, 18 L. Ed. 580, 582; Oelrichs v. Williams, 15

Wall. 211, 228, 21 L. Ed. 43, 44; State of Alabama v. State

of Arizona, 291 U. S. 286, 54 S. Ct. 399, 401; Smiyth v.

Ames, 169 U. S. 466, 516,°18 8. Ct. 418, 422.

POINT II.

Unless Relief Is Granted Here in Equity, Two Suits at

Law Will Be Required to Settle the Issues. It Will Be

Less Expensive and More Convenient to Both Parties

e Bill in One Action in

the Federal Court.

Since petitioner, Mary Di Giovanni, is interested only

jn the policy on the real property, the two policies could

3 Sf

not be legally combined in one suit in the state court.

Section 866, R. S. Mo., 1929. The balance of convenience’

is in favor of one action in the federal court. That is the

final test of equity jurisdiction; Hale v. Allison, 118 U. S.

56, 72, 77, 23 S. Ct. 244, 250, 252; First State Bank v.

Chicago, R. I. & P. Ry. Co., 63 Fed. (2d) 585, 590, 591 (C.

C. A. 8); Terrace v. Thompson, 263 U. S. 197, 214, 44 8.

Ot. 15, 17. ? |

POINT III.

Respondent Properly Joined the Policy for $3,000.00 and

the Policy for $1,500.00 in One Bill in Equity. The

Jurisdictional Amount Was, Therefore, Involved.

(A) RESPONDENT'S BILL CHARGES A CONSPIRACY. THIS

CONSTITUTES AN EXCEPTION TO THE GENERAL RULE. IT

POLICIES AGGREGATED FOR THE PURPOSE OF DETERMIN. |

ING JURISDICTION. .

The bill alleges these two policies were procured

by petitioners at the same time; that these policies were

procured at the time when petitioners also procured four

other policies on the building and one other policy on

the contents; that all of said policies were procured

as a part of a general scheme and plan to overinsure

the property, burn it, and collect from the insurance

companies; that pursuant thereto, petitioners did burn

the property, file proofs of loss claiming a. total loss

and are demanding the full face of the policies and

threatening to sue in the state court unless the insur-

ance companies pay in full. By means of this con-

spiracy petitioners have tied these claims together ‘so

that they should be aggregated in determining the

jurisdictional amount. Sovereign Camp, W. O. W., v. 0’-

Neill, 266 U. S. 292, 295, 45 S. Ot. 49, I. e. 50; McDaniel

v. Traylor, 196 U. S. 415, 427, 25 S. Ct. 369, 373; Me.

Daniel v. Traylor, 212 U. S. 428, 432, 29 S. Ct. 343, 345.

' (B) RESPONDENT HAD THE RIGHT TO MAINTAIN ONE

Both policies are alleged to have been procured at

the same time and as a part of the same conspiracy to

defraud. The alleged damage under each policy oc-

curred at the same time and in the same fire. Petitioner,

Pete Di Giovanni, is interested in both policies. Most

of the issues are the same as to both policies. Both

policies were, therefore, properly joined in one bill for

cancellation and the aggregate amount brings the case

within the jurisdietion of the federal court. Providers’

Mutual Life Insurance Company of Philadelphia v. Par-

sons, 70 Fed. (2d) 863, 864, certiorari denied by this court

55 8. Ct. 95; New York Life Insurance Company v.

Jones, 2 Fed. Supp. 600 (D. C. N. E. D. N. C.); Equity

Rule 26 (28 U. 8. C. A., Section 723); Kimel v. Missouri

State Life Insurance Company, 71 Fed. (2d) 921, 924 (C.

C. A. 10); Baltimore and Ohio Southwestern Railway

Company v. United States, 220 U. S. 94, 106, 31 S. Ct.

368, 371; Metropolitan Life Insurance Company v. Dunne,

2 Fed. Supp. 165, 166 (D. C. S. D. New York); City of

Dothan, Alabama, v. First National Bank of Dothan, 61

Fed. (2d) 685 (C. C. A. 5); Geneva Furniture. Company v.

S. Karpen d Bros., 238 U. S. 254, 35 S. Ct. 788. =

- POINT IV.

Respondent Has No Remedy on the Law Side of the Fed-

eral Court Which Is the Test As to Whether There Is an

Adequate Remedy at Law Preventing the Exercise of

Equitable Jurisdiction by a Federal Court.

The case being one of original equity o jurisdiction,

the requisite jurisdictional. amount being involved (Point

III a, b) equity jurisdiction can be defeated only by

there being a clear and adequate remedy at law.

Both policies cannot legally be joined in one action

in the state court since petitioner, Mary Di Giovanni, is

not interested in the policy on the personal property and

the state statutes provide actions may be joined only

where ali the parties arg interested in all the causes of

action joined. Section „R. S. Mo., 1929.

Since separate actions would have to be filed in the

state court the jurisdictional amount would not be in-

volved therein to permit removal to the Federal District

Court. There is, therefore, no possible remedy on the

law side of the federal court which is the test of whether

“there is an adequate remedy at law. Leavenworth Sav-.

ings and Trust Co. v. Newman, 23 Fed. (2d) 835 (C. C. A.

8); Fish v. Kennamer, 37 Fed. (2d) 243, 247 (C. C. A. 10) ;

Brown v. Guarantee Trust and Safe-Depositt Company,

128 If. S. 403, 412, 9 8. Ct. 127, 130; Davis v. Wakelee, 156

U. &. 680, 688, 15 S. Ct. 555, 558; Barber v. Barber, 21 How, .

591, 16 L. Ed. 226, 229; Henrietta Mills v. Rutherford

County, 281 U. S. 121, 126, 50 S. Ct. 270, 272; Smyth v.

Ames, 169 U. S. 466, 516, 18 S. Ct. 418, 422; Risty v.

Chicago, N. J. & P. R. R. Co., 270 U. S. 378, 388, 46 S. Ct.

236, 240; City Bank Farmers Trust Company v. Schnader,

291 U. 8. 24, 29, 54 S. Ct. 259, 261.

SERIATIM ANSWER TO PETITIONERS’ POINTS.

(Following Order in Petitioners’ Brief.)

POINT A.

—

The Circuit Court of Appeals Properly Overruled Peti-

tioners’ Motion to Complete the Record.

This motion was not filed until after the opinion

was handed down by the circuit court of appeals and

was raised only in connection with petitioners’ motion

for rehearing. We believe it was raised too late. Burnet

v. Commonwealth Improvement Company, 287 V. S. 415,

418, 53 8. Ct. 198, 199; Lynch v. United States, 292 U. 8.

571, 588; 54 S. Ct. 840, 847; New York Dock Company v.

Pozman, 274 U. S. 117, 123, 47 S. Ct. 482, 485.

(a)

There is no danger of all installment policies aggre-

gating a total in excess of $3,000.00 being drawn into

the federal court by this decision. Contingent foture

installments may not be aggregated. Wright v. Ipsur-

ance Company, 19 Fed. (2d) 117, (C, C. A. 5) 276 U. 8.

602; Healy v. Ratia, 292 U. 8. 263, 271, 54 8. Ct. 700, 704.

The injunction here sought is not to, restrain ac-

tions already pending in the state court but to protect

the jurisdiction of the federal equity court properly in-

voked by respondent. In such situation the federal

courts never hesitate to issué the tnjuhction for the pro-

tection of their own jarisdiction. Julian v. Central Trust

Company, 193 U. 8. 93, 112, 24 S. Ct. 399, 407; Wells Fargo

and Company v. Taylor, 254 U. S. 175, 183, 41 S. Ct. 93,

96; Looney v. Eastern Texas R. Co., 247 U. S. 214, 218, 38

S. Ct. 460, 462. 7

The circuit court of appeals’ opinion herein does not

interfere with petitioner’s right of a trial by a jury.

Before the adoption of the Federal Constitution there was

no right of a trial by jury in an equitable action for

cancellation. Here, if cancellation is not decreed, peti-

tioners will have a right to a jury trial on the law issues.

Liberty Oil Co. v. Condon National’ Bank, 260 U. S. 235,

242, 43 S. Ct. 118, 121; American Mills Company v. Amer-

ican Surety Company, 260 U. S. 360, 364, 43 8. Ct. 149,

151; Bankers v. Ford Motor Company, 69 Federal (2d)

665 (C. C. A. 3rd.).

(b) |

Respondent's bill in equity charges petitioners have

filed proofs of loss claiming a total loss and demanding

the full face of the policies. It further alleges that

petitioners are threatening zo sue in the state court to

recover on said policies and will do so unless restrained

by the federal equity court. The allegations on demurrer

stand admitted and are sufficient fo show a threatened

injury. State of Kansas v. State of Colorado, 185 U. &.

125, 145, 22 S. Ct. 552, 559; Pennsylvania v. West Virginia,

262 U. S. 553, 593, 43 8. Ct. 658, 663; 36 Stat. 1162, 28

U. S. C. A., Section 379; Swift and Company v. United

* an

States, 276 U. S. 311, 326, 48 §. Ct. 311, 315; New Mesico v.

Standard Oil Company, 56 Fed. (2d) 973, 976 (C. C. A.

10); Vicksburg Waterworks Company v. Vicksburg, 185

V. 8. 65, 82, 22 8. Ct. 585, 592; Section 865, R. S. Mo., 1929.

(e)

These suits could not legally. be joined in the state

court, each being less than the jurisdictional amount. There

could be no removal to the federal court. There is, there- -

fore, no remedy at law on the law side of the federal

court which is the test of there being an adequate remedy

at law. City Bank Farmers Trust Company v. Schnader, °

291 U. S. 24, 29, 54 8. Ct. 259, 261; Risty v. Chicago, R. J.

4 P. Ry. Co., 270 U. S. 378, 388, 46 S. Ct. 236, 240; Smyth

v. Ames, 169. U. S. 466, 516, 18 S. Ct. 418; American Mutual

Liability Insurance Company v. McDonaugh, 61 Fed. (2d)

558, 563 (C. C. A. 7th) (certiorari denied 288 U. S.

602). ' ‘we

(d)

1 Statute 82 (Section 267, Judicial Code) 36 Statute

‘1163, provide. no suit in equity may be maintained in

a federal court where there is an adequate remedy at

law refers to adequate remedy at law in the federal court.

Henrietta Mills v. Rutherford County, 281 U. S. 121, 126,

50 8. Ct. 270, 272.

would not be as satisfactory, complete, prompt, and

‘efficient to attain the ends of justice as the remedy, in

equity. Keaton v. Little, 34 Fed. (2d) 396, 398 (C. C. A.

10); Dawson v. Kentucky Distillers and Warehouse .

* 4% | 6

9 9 N . a

Company, 255 U. S. 288, 296, 41 8. Ct. 272, 275; Risty

v. Chicago, R. 1. & P. Ry. Co., 270 U. S. 378, 388, 46 8. Ct.

236, 240.

| (e) ,

There is no reason to classify bills for cancellation

within the exception where equity jurisdiction is denied

in order to prevent interference with the enforcement of

state revenue acts, state judgment, and other internal

affairs of state government which involve interference

with such state government. There is here involved no

interference with state government.

(f)

We have already pointed out that this action is

primarily for the cancellation of these policies of in-

surance. It is not a bill of peace and partakes only

slightly of the characteristics of such a bill in that the

supplemental relief asked in addition to cancellation in- -

volves an injunction against prosecuting claims in the

state court.

POINT d.

The Circuit Court of Appeals Properly Held There Was

Equitable Jurisdiction for Cancellation Reenforced by

the Ability to Avoid a Threatened Multiplicity of Suits.

(a ;

We have just pointed out this is primarily a bill

for cancellation and not a bill of peace. Furthermore,

exceptions have been noted to the requirement that there

must be a trial and judgment at law before a bill of peace

R 10

can. be maintained. This should come within the ex-

ception since respondent had to sue before a law action

was instituted in the state court or it cduld never secure

an injunction in the federal court restraining proeeedings

in the state court. 36 Stat. 1162, 28 U. S. C. A., Section

379. |

POINT D.

The Bill Alleged the Face Value of the. Two Policies

Was $3,000.00 and $1,500.00 Respectively. The Bill

Alleged Petitioners Were Claiming the Total Loss and

Demanding the Full Face Value of the Policies. The

Jurisdictional Amount Was, Therefore, Involved.

The bill alleges petitieners are demanding the full

face of the policies. These allegations must be accepted

as true. Grand Chute v. Winegar, 15 Wall. (U. S. 373,

376). | 7 |

The fact on a trial respondent might set up and suc-

cessfully sustain the defense that it is liable only for

one-fifth of the total fire does not make that the amount

involved since it does not appear to a legal certainty” -

that petitioners may not succeed in recovering the full

face of the policies as they seek to do. Schunk v. Moline,

Milburn d Stoddard Company, 147 U. S. 500, 504, 13 S. Ct.

416; Barry v. Edmunds, 6 S. Ct. 501, 116 U. S. 550, 559.

Furthermore, the burden is on the defendant to

prove less than the jurisdictional amount is involved.

Heally v. Ratta, 293 U. S. 263, 271, 54 S. Ct. 700, 704;

Hunt v. New York Cotton Exchange, 205 U. S. 322, 333 8.

Ct, 529, 532; Wetmore v. Rymer, 18 8. Ct. 295, 169 U. 8.

115, 128; Put-in-Bay W. L. R. Company v. Ryan, 181 U.

C LN SY Re a

8. 400, 431, 21 S. Ct. 709, 717; Beacher v. Pan American

Life Insurance Company, 73 Fed. (2d) 263, 264 (C. C. A.

öth). —

POINT N. .

The t Court of Appeals Properly Held the Two

Claims Arising under the Two Policies of Insurance

ould Be Together for the Purpose of Ascertain-

ing the Amount Involved for Jurisdictional Purposes.

(a and bp) ‘

The issues under this heading have been discussed

by us under Point III, a and b, to which we refer this

court.

POINT I.

‘The Primary Object Sought in Respondent's Bill Is the

Cancellation of These Two Policies of Insurance. This

Is a Matter of Original Equity Jurisdiction and Can Be

Defeated * — Showing That There Is an Adequate

Remedy At Law

In the opinion of the eireuit court of appeals herein

(Tr. p. 16) the court cites the case of New York Life In

surance Company v. Miller, (C. C. A. 8) 73 Fed. (2d)

350, as sustaining the proposition that the right to

maintain an equitable action to rescind or cancel a con-

tract of insurance, because of false representation made

by the imsured to induce its execution, where there is no

adequate remedy at law, is well 2 (Citing many

cases,)’’

In the case of Shane v. West Coast Life Insurance

Company, 73 Fed. (2d) 681, the Circuit Court of Ap-

peals for the 10th Circuit ruled the same way citing

numerous authorities. at page *

In the case of Louisville, V. & 4 C. Ry. Co. v.

Lewisville Trust Company, 174 U. S. 552, 567, 19 S. Ct.

817, this court said, I. c. 822:

The demurrers to the bill for want of equity

were rightly overruled, and were not insisted on in

this court. The object of the -bill was that the

guaranty upon a great number of negotiable bonds,

which might otherwise pass into the hands of bona

fide purchasers, might be cancelled, and suits upon

the guaranty restrained, because of facts not ap-

pearing upon its face. The relief sought could only

be had in a court of equity. Peirsoll v. Elliott, 6

Pet. 95, 98; Grand Chute v. Winegar, 15 Wall. 373,

376; Robb v. Vos, 155 U. S. 13, 15 Sup. Ct. 4;

Springport v. Bank, 75 N. Y. 397; Fuller v.

Percival, 126 Mass. 381.“ 7

To the same effect see Rich v. Braxton, 158 U. 8.

375, 405, 15 S. Ct. 1006, I. c. 1017. =

In the case of Allore v. Jewell, 94 U. S. 506, 511, 24

I. Ed. 260, this court said, I. e. 264: ©

„ef these deeds were obtained by the exercise

of undue influence over a man whose mind had

ceased to be the safe guide of his actions, it is

against conscience for him who has obtained them

to derive any advantage from them. It is the

peculiar province of a court of conscience to set

them aside. That a court of equity will interpose

in such a case, is among its best settled principles.’

Harding v. Handy, 11 Wheat. 125.7“

| Further, the petition. reveals other grounds of

‘equitable jurisdiction, to-wit: fraud, ‘injunction and

avoidance of a multiplicity of suits. These elements are

fundamental grounds for equitable relief. In the case

of Tyler v. Savage, 143 U. S. 79, 95, 12 8. Ct. 340, this

court in holding equity had jurisdiction where similar

equitable relief was asked, said, I. c. 345:

„Thus there were in the case, as ingredients to

support the jurisdiction of equity, discovery, account,

fraud, misrepresentation, and concealment. Story,

Eq. Jur., Sections. 64k, 67, 184, 191, Jones v. Bolles, ö

9 Wall. 364, 369.“

To obtain justice and do equity, this court has

persistently refused to permit equitable remedies to be-

come cireumscribed and limited. The rule is well stated

by this court in the case of Union Pac. Ry. Co. v. Chi-

cago, R. I. & P. Ry. Co., 163 U. S. 564, 600, 16 S. Ct. 1173,

‘as follows, I. c. 1187: . (

— It must not be forgotten that, in the increasing

. complexities of modern business relations, equitable

remedies have necessarily and steadily been. ex-

panded, and no inflexible rule has been permitted to

circumscribe them. As has been well said equity

has contrived its remedies ‘so that they ‘shall cor-

respond both to the primary right of the insured

party, and to the wrong by which that right has been

violated,’ and ‘has always preserved the elements of

flexibility and expansiveness, so that. new ones may

be invented, or old ones modified, in order, to meet

the requirements of every case, or to satisfy the

needs of a progressive social condition, in which new

primary rights and duties are constantly arising,

and new kinds of wrongs are ** committed.’

Pom., Eq. Jur., Section 111.’’

In the case of Watson v. Sutherland, 5 Wall. 74, 18

L. Ea. 580, this court in upholding the issuance of an

injunction to prevent the levies of execution on a number

of judgments on property of an innocent third person

said, I. c. 582:

„The absence of a plain and adequate remedy

at law affords the only test of equity jurisdiction,

and the application of this principle to a particular

case must depend altogether upon the * as NN

disclosed in the pleadings.

The primary object of. respondent's bill in equity is

to obtain cancellation of these two policies of insurance.

Such a decree would not only destroy the policies them-

selves as evidence, but would also establish their in“

validity so that no future action could be maintained upon

claimed contracts of insurance arising out of the trans-

actions here in issue. Aside from the other equitable

grounds of relief which we have mentioned, cancellation

alone is sufficient to establish the jurisdiction of the

federal equity court. We believe this case comes squarely

within the law as declared by this court in the case of

Oclrichs v. Williams, 15 Wall. 211, 228, 21 L. Ed. 43,

where this court said, I. c. 44: |

The direct proceeding in equity wh save time,

expense and a multitude of suits, and settle the

rights of all concerned in one litigation. Besides,

there is an element of trust in the case, which,

wherever it exists always confers jurisdiction in

equity.“ i

In the case of Smyth v. Ames, 169 U. S. 466, 516, 18

S, Ct. 418, this court said, I. c. 422:

„But if the case, in its essence, be one cogni-

. gable in equity, the plaintiff—the required value being

in dispute—may invoke the equity powers of the

proper cireuit court of the United States whenever

jurisdiction attaches by reason of diverse citizenship,

or upon any other ground of federal jurisdiction.

Payne v. Hook, 7 Wall. 425, 430; McConthay v.

- Wright, 121 U. S. 201, 205, 7 S. Ct. 940.”

In the case of State of Alabama v. State of Arizona,

291 U. S. 286, 290, 54 S. Ct. 399, this court said, I. c. 401;

„There is no test or rule of general applica-

tion by which to determine whether a complaint in

equity is multifarious. That question is to be de-

cided by the court in the exercise of sound discre-

tion having regard to the facts alleged, circumstances

disclosed, and the character of the relief sought.

Oliver v. Pratt, J How. 333, 411, 11 L. Ed. 622;

Nelson v. Hill, 5 How. 127, 132, 12 L. Ed. 81; Shields

v. Thomas, 18 How. 253, 259, 15 L. Ed. 368; Fitch

v. Creighton, 24 How. 159, 163, 164, 16 L. Ed. 596;

Brown v. Guarantee Trust d Safe-Deposit Co., 128

U. S. 403, 410, 9 8. Ct. 127, 32 L. Ed. 468.

Under the above authorities it seems clear to us

that the allegations of respondent’s bill bring this case

squarely within the original equity jurisdiction of the

_ federal court. The jurisdictional amount is involved

and there is no adequate remedy at law, as we will point

out hereinafter. (Points III and IV.) |

POINT II.

Unless Relief Is Granted Here in Equity Two Suits at Law

Will Be Required to Settle the Issues. It Will Be Less

Expensive and More Convenient to Both Parties to Try

the Issues of Plaintiff's Bill in One Action in the

Federal Court. _

In the case at bar it appears unless this court holds

there is federal jurisdiction of this bill in equity the re-

spondent will be vexed by two separate suits in the state

court on these policies of insurance. These two policies

were taken out at the same time and under the same cir-

cumstances rendering the main issues in the two separate

suits identical; the suit in equity will, therefore, avoid

a multiplicity of suits. We have already pointed out

that the nature of the allegations in respondent's bill

and the relief asked bring it within the original equity

’ jarisdiction of the court. It is more economical, con-

venient, prompt and effective to try this matter in one

suit in the United States District Court in the city where

the policy was taken out and the fire occurred and

where the witnesses live than to try two different suits

in jurisdictions chosen by petitioners which may be away

from the vicinity of the fire and the residences of the

witnesses. Petitioners will be subjected to trying the

equitable issues first even in the state court. The two

eases would no doubt be tried so close together that the

first would not become res adjudicata before the second

one was tried.

In the case of Hale v. Allinson, 188 U. S. 56, 23

Sup. Ct. Rep. 244, the court in laying down the test as

to when jurisdiction in equity should be exercised, de-

clared the law as foilows, I. c. 250 (188 U. S. L. c. 72):

„In any case where the facts. bring it within

the possible jurisdiction of the court, according to

the view taken by it in regard te such facts, the

decision must depend largely upon the question of

the reasonable convenience of the remedy, its ef-

fectiveness, and the inadequacy of the remedy at

law.“ ; 5

w ‘

I. e. 252 (188 U. S. I. e. 77):

„Cases in sufficient number have been cited to

show how divergent are the decisions on the question

of jurisdiction. It is easy to say it rests 2 the

prevention of a multiplicity of suits, but to sary

whether a particular case comes within the prin- .

ciple is sometimes a much more difficult task. Each

ease, if not brought directly within the principle

of some preceding case, must, as we think, be de-

cided upon its own merits and upon a survey of the

real and substantial convenience of all parties, the

adequacy of the legal ‘sited, Oe situations of the

different parties, the points to be contested and

the result which would follow if jurisdiction shovid

be assumed or denied; these varioug matters being

factors to be taken into consideration upon the

question of equitable jurisdiction on this ground, and

whether within reasonable and fair grounds the suit

is calculated to be in truth one which will practically

prevent a multiplicity of litigation, and will be an

actual convenience to all parties, and will not un-

reasonably overlook or obstruct the material interests

of any.“

In the case of First State Bank v. Chicago, N. 1. & F.

Ry. Co., 63 Fed. (2d) 585 (C. C. A. W the court said,

I. e. 590: J

„The avoidance of unnecessary suits should be

much desired by litigants and taxpayers. In

Munson Inland Lines, Inc., v. Insurance Co: of North

America, (D. C. N. v.) Fed. (2d) 269, 271, Judge

Woolsey clearly exp such desire, ‘that the

avoidance of multiplicity of suits by every device,

which is jurisdictionally possible and practically con-

venient, should be encouraged, and should be one of

the main objectives of procedural administration,

and of decisions by courts in practice cases. And

the same judge in Irving Trust Co. v. Marine Mid-

land Trust Co. of New York, (D. C. N. Y.) 47 Fed.

(2d) 907, 908, states t ‘multiplicity of suits in-

volving issues which:can be conveniently tried to-

gether, is something that equity holds in alhorrence.’’

IL. e. 591:

‘‘Surely a suit could be brought in equity under

these circumstances to cancel void ‘instruments so

that in this case there is a well-recognized ground of

equity jurisdiction outside of multiplicity of suits.

The relief sought against all the defendants was the

same, to-wit, the cancellation of dee bills of lading.

The defenses which could be interposed were the same,

the legal questions were the same. The operation of

the acts of defendants upon plaintiff were identical in

their effect upon plaintiff's richts.

In the case of .City of Walla Walla v. Walla Walla

Water Company, 172 U. S. 1, 19 8. Ct. Rep. 77, the court ©

had before it an action to restret the city from violat-

ing its covenant not to erect a competing waterworks, to

the plaintiff. A demurrer to the bill ‘was filed below

and overruled. In affirming such action by holding

case cognizable in equity, this court said, I. c. 82 (

U. S. I. c. 12):

„This court has repeatedly declared in affirm-

ance of the generally accepted proposition that the

remedy at law, in order to exclude a concurrent

remedy in equity, must be as complete, as practical,

and as efficient to the ends of justice and its prompt

admission, as the remedy in equity. Boyce v. Grundy,

3 Pet. 210, 215; Ius. Co. v. Bailey, 13 Wall. 621;

Kilbourne v. Sunderland, 130 U. S. 505, 514,

Ct. 594; Tyler v. Savage, 143 U. S. 79, 95, 12 Sup.

Ct. 340.“ N

It is our contention that the legal remedy in a state

court—there being. no legal remedy in the federal court—

is not an adequgte legal remedy within the decisions of

this court aside from the fact that the legal remedy to

defeat federal equity jurisdiction must be a legal remedy

on the law side of the federal court. We submit the situa-

tion here does not measure up to the test set by this

court in the case of Terrace v. Thompson, 263 U. S. 197,

214, 44 8. Ct. 15, where this court said, I c. 17: |

“But the legal remedy must be as complete,

practical and efficient as that which equity could *

ford. Boise Artesian Water Co. v. Boise City, 213

S. 276, 281, 29 Sup. Ct. 426, 53 L. Ed. 796; Walla

alla v. Walla Walia Water Co., 172 U. S. 1, 11, 12,

19 Sup, Ct. 77, 2 Ed. 341.“

POINT III.

_ Respondent Propeffy Joined the Policy for $3,000.00 and

the Policy for $1,500.00 in One Bill in Equity. The

Jurisdictional Amount Was Therefore Involved. :

(A) RESPONDENT'S BRILL CHARGES A CONSPIRACY. THIS “

CONSTITUTES AN EXCEPTION TO THE GENERAL RULE AND

ENTITLES .RESPONDENT TO VE THE SUMS OF THE TWO

POLICIES AGGREGATED THE PURPOSE OF DETERMIN-

ING JURISDICTION.

We direct attention to the allegations of the petition |

on pages 3 and 4 of the transcript wherein respondent

charges that these and certain other policies issued by

Une other companies were procured by petitioners as a part of

a general scheme and plan to defraud insurance com-

panies by over-insuring the property and setting the same

on fire. It is charged that the policies were procured ©

from respondent under the representation no other in-

surance would be taken on the property. (Tr. p. 3.) It

further charges, that petitioners set fire to this property;

that petitioners have filed proofs of loss claiming a total

loss of the property and demanding the full face of these

policies. It is further charged that unless relief is granted

in this action, petitioners will file two suits at law in

the state court, ‘‘as a means of consummating the said

fraudulent purpose, scheme, and plan of the said re-

spondents (Tr. p. 4,)’’ These allegations clearly

charge conspiracy on the part of the defendants. The cir-

cuit court of appeals so Held (Tr. p. 15) and petitioners

. 1

do not here claim otherwise. By means of this con-

spiracy, the petitioners have tied these claims together

so that respondent is entitled to have the sums of the two

policies aggregated for the purpose of determining the

issue of jurisdiction.’ Where there is ‘a charge of con-

spiracy, as here, the case falls within a well-recognized

exception to the general rule that different contracts may

not ordinarily be aggregated in determining jurisdiction.

In the case of Sovereign Camp, W. O. W., v. O'Neil,

266 U. S. 292, 45 S. Ct. Rep. 49, the situation was very

similar to the one at bar. A suit was brought in equity

by the sovereign’ camp against twenty-five of its mem-

bers, charging them with entering into a conspiracy to

have themselves décted Aelegates to a session of the

Sovereign Camp, where it was. decided they had not been

legally elected and were not entitled to sit as delegates.

It was further alleged that, pursuant to said agreement,

these twenty-five defendants had instituted twenty-five

different suits in a local court of Texas to recover amounts

ranging from $987.00 to $1,170.00 as per diem and mileage

for attendance at the Sovereign Camp. The bill then

prayed for an injunction against the prosecution of these

suits. Defendants moved to dismiss on the ground the

jurisdictional amount was not involved to give jurisdiction

based solely on the diversity of citizenship. In deny-

ing such motion, this court, speaking through Mr. Jus- ~

tice Sanford, said, I. c. 50 (266 U. Shi 295) :

Exception to this general rule was, however,

recognized in Me Daniel v. Traylor, 196 U. S. 415,

427, 25 8. Ct. 369, 49 L. Ed. 533. There the heirs

Hiram Evans an intestate, brought suit in

—

22 .

the circuit court against several defendants to en-

join the enforcement of claims that had been al-

lowed as liens upon his real estate by. orders of a

“probate court. Each claim was less thou the req-

uisite jurisdictional amount, but thei: aggregate

exceeded that sum. The bill alleged that these

claims were not debts of the intestate, bat that the

defendants had conspifed and confederated with the

administrator: to secure their payment out ‘of the

estate, and that the orders allowing them had been

procured as the result of the conspiracy .and The

fraud practiced in pursuance thereof. This court

reversed a decree of the circuit court dismissing the

dill, on demurrer, for want of jurisdiction, and held

that, on the face of the bill, the value of the mat-

ter in dispute was ‘the aggregate amount of ‘the

claims fraudulently procured by the defendants act-

ing in combination to be allgwed in the probate court

as claims against the esta. In the opinion, after

_ referring to the class of cases to which Walter v.

Northwestern N. Co. belonged, the court said:

The case before us, however, is presented

by the bill in an entirely different aspect. The

case may be regarded as exceptional in its

facts, and may be disposed of without affect-

ing former decisions. There is no dispute as

to the amount of any particular claim. So fa

as the bill is concerned, if any one of the

specified claims is good against the Estate of

Hiram Evans, then all are good. * * The

matter in ‘dispute is whether the landes I

enn be sold to pay all the claims, m the ag-

gregate, which the defendants, by combination

and conspiracy, procured the probate court to

-allow against the Estate of Hiram Evans. The

essence of the suit is the alleged fraudulent

combination and conspiracy to fasten upon fhat

estate “a liability for debts of John Evans,

_ which were held by the defendants and which

they, acting in combination, procured, in co-

operation with.James Evans, to be allowed as

claims: against the Estate of Hiram Evans. By

reason of that combination, resulting in the al-

lowance of all those claims in the prolgte court,

as expenses of administering the Estate of

Hiram Evans, the defendants have so tied their

respective claims together as to make them, so,

far as the plaintiffs and the relief sought by

them are concerned, One claim. The validity

of all the claims depenidd pon the same facts.

The lien on the lands is asserted by each

deferidant has its origin as well in the combination

to ahich all were parties, as in the orders of the

probate court, which, in furtherance of that

combination, Were procured by their joint ac-

tion.“

And in McDaniél 8 raylor, 212 U, S. 428, 433,

29 8. Ct. 343, 344 (53 L. Ed. 584) —on a second

appeal in affirming a decree of the eireuit court,

made on return of the case, again dismissing the

suit for want of jurisdiction, upon a finding that the

allegation that the defendants had conspired in pro-

- curing the allowance of the claims had not been

established, it was said:

As we have already seen, it was fraudu-

lent combination and conspiracy which united

the claims and made the aggregate of the claims

the matter in dispute. By reason of that com-

bination, we decided the claims were ‘‘so tied“

together as to make them ‘‘so far ‘as the plain-

tiffs and the relief sought were concerned, one

claim.’’ ’ 8

We find that under the allegations of the pres-

ent bill the case comes fairly within the reason of

the exception recognized in the McDaniel cases. It..

is not only alleged that the defendants’, claims are

without foundation, but that they originated and

are being prosecuted in the state court in pursuance

of an agreement and conspiracy to embarrass and

1 ‘

~ . 0 —

attempt to ruin the society. There is no dispute

as to the amount of any particular claim; and the

validity of all of them depends upon the same is-

sue. A conspiracy to prosecute, by concert of ac-

tion, numerous baseless claims against the same

person for the wrongful purpose of harassing and

ruining him partakes of the nature of a fraudulent

conspiracy; and in a suit to enjoin them from be-

ing separately prosecuted, it must likewise’ be

deemed to tie together such several claims as one

claim for jurisdictional purposes, making their ag-

gregate amount the value of the matter in contro-

versy. We conclude, therefore, that, on the face

of the bill, the district court had jurisdiction of the

suit by reason of the diversity of een and

the amount in ‘controversy. *

See, also, McDaniel v. Traylor, 196 U. S. 415, 427, Pat

8. Ct. 369, J. c. 373, and the ‘same case on its second ap-

. INVOLVED THE

$4,500.00 AND MORE THAN THE REQUISITE JURRMPICTIONAL

pearance in this court 212 U. 8. 428, 433, 29 8. Ct. 343,

345. |

Even in the absence of allegations of conspiracy

_which are here present, we ‘believe réspondent had the

right to join these two policies in one bill for cancella-

tion in equity. If that is true, then the jurisdictional

amount is here involved. In the case of Providers. Mu-

tual Life Insurance Company of Philadelphia v. Parsons,

70 Fed. (2d) 863, the Circuit Court of Appeals for the

Fourth Circuit (certiorari denied by this court, 55 8. Ct.

95)

said, I. c. 684:

by several district courts: New York Life Insurance

Co. v. Jones, 2 Fed. Supp. 600 (D. C. W. D. N. C.);

Mutual Life Insurance Company v. Rose, 294 Fed.

122 (D. C. K. D. Ky.), reversed on other grounds

(C. C. A.) 19 Fed. (2d) 280; Metropolitan Life In-

surance Company v. Dunne, 2 Fed. Supp. 165 (D. C.

E, D. N. v.). Compare «New York. Life Insurance

Company v. Marshall, (D. C.) 21 Fed. (2d) 172; Id.

(C. C. A.) 23 Fed. (2d) 225; Columbian Natianal

_ Life Insurance Company v. Harrison, 12 Fed. (2d)

986 (C. C. A. 6). The object of the statutory limita-

tion as to amount is intended merely to. prevent in-

voking federal jurisdiction where the amount in con.

troversy is not substantial. While it has been held

that separate claims of two or more plaintiffs, each

less than the jurisdictional amount, may not com-

bined to confér jurisdiction (Lion Bonding and

. Surety Company v. Karate, 262 U. S. 77, 86, 43 8.

Ct. 480, 67 L. Ed. 871), nevertheless, a single plain-_

tiff having several glaims, each less than the juris-

dictional amount, may properly combine them for

the. purpose of establishing the requisite amount in

cantroversy where they can properly be joined in

one suit or action, Hughes, Fed. Practice, Vol. I.

Sections 412, 485; Yates v. M hyel Coke Co., 221 Fed.

603, 606 (C. C. A. 6); Haftford Fire Insurance Com-

pany v. Erie Railway Gompany, (C. C.) 172 Fed. 7

899; Massachusetts Pr ive Ass'n v. Kittles, 2"

Fed. (2d) 211 (C. C. A. P); Baltimore & O. S. W. R.

Co. v. United. States, U. S. 94, 31 S. Ct. 368, 55

L. Ed. 384. There is no objection to joining in one

@quity suit both policies for purposes of cancella-

tion, as this is entirely permissible - under Equity

Rule 26 (28 U. S. C. C. A., Section 723).”’

In the case of New York Life Insurance Company ö

v. Jones, 2 Fed. Supp. 600, the District Court for the

_ Northeastern District of North Carolina said, I. c. 600:

„Equity Rule 26 (28 U. S. C. A., Section 723)

provides: The plaintiff may join in one bill as

many causes of action, cognizable in equity, as he

may have against the defendant.’ *

28 U. S. C. A., Section 41 (1), confers jurisdic-

tion on the United States District Court where there

is diversity of citizenship if the matter in contro-

versy exceeds, exclusive of interest and costs, the

sum or value of $3,000.00. This provision applies to

actions at law and suits in equity. Cyc. ef Fed.

Pro., Section 56; Farmers’ d Merchants’ Bank of

Richmond, (D. C. N. C.) 274 Fed. 235. The author-

‘ities hold that the amount in dispute is the sum of the

claims in all the counts upon eanses of action

properly joined. Stanley v. Board of 8 ors. of

Albany y, (C. C. N. V.) 15 Fed. A83, affirmed .

121 U. S. 535, 7°S. Ct. 1234, 30 L. Ed. 1800; Hartford

Fire Insurance Company v. Erie, (C. G.) 172 Fed.

In B. & O. Southwestern Railroad Company v.

United States, 220 U. S. 94, 31 S. Ct. 368, 55 L. Ed.

384, eleven actions at law were instituted to recover

penalties, but the cases were consolidated by the

trial court. Jurisdietion whe challenged because the

amount involved in each case was only $1,000.00;

when consolidated the amount was -$5,500.00, and

the court held it had jurisdiction. Heffner v. Gwynne-

Treadwell Cotton Co., (C. C. A.) 160 Fed. 635;

Schunk v. Moline, Milburn d Stoddard Co., 147 U. S.

500, 13 8. Ct. * 37 L. Ed. 255; Yates v. Whyel

Coke Co., (C. C. A. 6th) 221. Fed. 603; Edwards v.

Bates County, 163 U. 8. 269, 16 8. Ct. 967, 41 L. Ed.

155.“

— Vv

In the case of ‘Kimel v. Missouri State Life n.

Company, 71 Fed. (2d) 921, the United States | Cirouit ‘

Court of Appeals for the ** Circuit in a law action

said, I. c. 924:

„Where t plaintiff has several demands

against the defendant which he may join in one

action, the aggregate of those demands exclusive of

interests and costs is the amount in controversy.’’

8. In the case of Baltimore d Ohio Southwestern Rail-

road Company v. United States, 220 U. 8. * 106, 31

8. Ot. 368, this court said, I. c. 371:

„The point is made in the brief “Sat this court

has no jurisdiction, because the amo involved in

the cases embraced in these writs of erior was only .

$1,000.00. The court, whether properly, consolidated ©

all the cases (Rev. Stat., Section 921, U. S. Comp.

Stat., 1901, p. 685) and, as consolidated, the amount

of the possible penalties sued for in the eleven actions

was fifty-five hundred dollars.’’

See, also, Metropolitan Life * Company

v. Dune, 2 Fed. Supp. 165, 166 ™ C. S. D.

New York).

We have found only two cases which at first blush

seem to hold contrary to the above. In the case of City

of Dothan, Ala, v. First National Bank of Dothan, 61

oun y ' 28

Fed. (2d) 685, the Cireuit Court of Appeals for the 5th -

Cirrouit held that the second equitable action, involving

only a thousand dollars, could not be joined to another

action already pending in a federal equity cob because,

it was a separate action and did not involve the jariedic-

tional amount. We believe that decision is based un the

fact the two actions were unrelated and, theféfore, not

properly joined. The court decided the second action, l.

c. 686, as “a liability wholly different from that asserted

against the original defendant,”’ and l. o. 687, ‘The

separate and distinct equitable cause of action asserted

by the amendment, ete.“

The other case to which we refer is the decision of

this court in the case of Geneva Furniture Manufacturing

Company v. S. Karpen d Bros., 238 U. S. 254, 35 S. Ct.

788, where this court held that part of the suit was

brought under the patent law and therefore properly in

the federal court. The court then held that the remainder

of the action did not arise under the patent law. The

court held simply that the court could not take jurisdie-

tion of the second suit against the defendant without its

consent save in a district of its residence or that of a

plaintiff. (Jud. Code, Section 51.) There i is no such issue

here and since the cancellation of both policies and an in-

: junction against suits thereon in the statetourt are mat-

ters of original equity jurisdiction which may properly be

joined under Equity Rule 26, we submit, aside. from

the allegation of conspiracy, the jurisdictional amount is

here involved.

2 POINT IV, +.

Respondent Has No Remedy on the Law Side of the Fed-

eral Court Which Is the Test of Whether There Is an

Adequate Remedy t Law Preventing the Exercise of

* Jurisdiction by a ‘Federal Court.

In the case at bar, actions at law on these two policies

_ could not be joined in one suit. The statutes of Missouri

provide. All parties must interested in all causes of

action joined at law. Sec. , R. S. Mo., 1929 (set out

in full under Point C (b)-infra). . °

Here petitioner, Mary Di Giovanni, has no interest

in any recovery under the policy insuring the personal

property. Under the Missouri statutes actions may be

joined only where all parties are interested in. All the

actions. so joined. Since that situation does not here

exist, two suits would necessarily have to be brought in

the state court, neither of which would be removable to.

the federal court. There is a common point of litiga-

tion in the two suits since the issues in both are identical

except as to the measure of damages and the issue of

whether petitioner, Mary Di Giovanni, participated i in the

fraudulent consp! and. thereby i is debarred of recovery.

Although the ctions cannot be joined at law they can

be joined in equity in this court. = '

In the case af Leavenworth Savings and Trust Com-

pany v. Newman, 23 Fed. (2d) 835,. the Circuit Court of

Appeals for thé Eighth ‘Circuit had before it an appeal

from the Distric{ Court kor the Western District of Mis-

souri. Suit had been instituted in equity against stock-

holders of the ‘mortgagor company on guaranty agreements

with a prayer for an accounting and for the determina-

tion of liability of each of the defendants. This court

dismissed the bill. In reversing the court with instruc- «

tions to reinstate the bill, the United States Circuit Court

of Appeals held each guaranty agreement was part of

the same transaction and the matter was properly brought

in equity. In so holding, the court said, I. e. 838:

In the case at bar, some of the numerous ques-

tions involved are of equitable cognizance; many of

them are common to all of the defendants. Each de-

fendant is further interested in the amount .recovered

from each of the codefendants. The remedy at law

available to plaintiff is not as prompt, practical and

efficient to attain the en wrstice as a sn. in

equity. On the face of bill, at least, the con-

’ venience of both plainttff and defendants will be. best

subserved by a single suit in equity. Under such cir-¥

cumstances the’ avoidance ef a multiplicity of suits

is a sufficient and valid reason for joining the defend-

ants in a single equitable suit. Hayden v. Thompson,

71 Fed. 60 (C. C. A. 8); Wyman v. Bowman, 127 Fed.

257 (C. C. A. 8); Lake Charles Rice Milling Co. v.

Pacific Rice Growers’ Ass’n, (C. C. A.) 295 Fed.

246.’

An the case of Fish v. Kengamer, 37 Fed. (2d) 243, the

United States Circuit Court of Appeals for the 10th Cir-

cuit in an ejectment action where numerous claimants

were permitted to intervene, said |. c. 247:

It has been held, by the Supreme Court of the

United States, to be impracticable to lay down any

‘fixed, unbending rule as to what constitutes multi-

fariousness or misjoinder of causes of action. Oliver

v. Peath, 3 How. 411 (11 L. Ed. 622); Gaines v.

Chew, 2 How. 619 (11 L. Ed. 402); Barney v.

Latham (103 U. 8. 205, 26 Ed. 514), October Term,

1880-1 >. > Md

In the case’ of Brown v. Guarantee Trust d Safe-

Deposit Company, 128 U. S. 403, 412, 9 S. Ct. 127, this!

court said, I. e. 130:

„The case against one defendant may be so en-

tire as to be incapable of being prosecuted in sev- -

eral suits; and yet some other defendant may be a

necessary party to some portion only of the case

* stated. In the latter case, the objection of multi-

fariousness cannot be allowed to prevail. Attorney-

General v. Poole, 4 Mylne & C. 17, 31; Turner v.

Robinson, 1 Sim. & S. 313; Attorney-General v.

Cradock, 3 Mylne & C. 85. It is not indispensable

that all the parties should have an interest in all the

matters contained in the suit; it will be sufficient if

each party has an interest in some ‘material matters

in the suit, and they are connected with the others.

Addison v. Walker, 4 Younge & C. 442; Parr v. At-

torney-General, 8 Clark & F. 435; Worthy v. John-

son, 8 Ga. 238.“ N

In the state law “court respondent would have to

‘establish the participation of petitioner, Mary°di Giovanni,

as well as Pete di. Giovanni in order to maintain its

defense. f ' s „„

The remedy in a state court is, therefore, wholly in-

adequate wifMin the ruling of this court in the case of

Davis v. Wakelee, 156. U. S. 680,.688, 15 S. Ct. 555, where

this court said, I. c. 558: 1

In the uncertainty which appears to exist in.

that state as to whether a complaint setting forth all

the facts would or would not be demurrable, we

think it may be frly said that the remedy at iaw

is not so plain or clear as to oust a court of equity

of jurisdiction. It is a settled principle of equity

jurisprudence that, if the remedy at law be doubtful,

a court of equity will not decline cagnizance of the

suit. Boyce’s Ex’rs v. Grundy, 3 Pet. 210; Watson

v. Sutherland, 5 Wall. 74, 79; Rathbone v. Warren,.

10 Johns. 587; King v. Baldwin, 17 Johns. 384; In-

surance Co. v. Fisk, 1. Paige 90; Teague v. Russell,

2 Stew. (Ala.) 420; Southhampton Dock Co. v. South-

hampton Harbour ck @ier Board, L. R. 11, Eq. 254;

Weymouth v. Boyer, 1 Ves. Jr. 416. “Where equity

can give relief, plaintiff ought not to be compelled

to speculate upon the chance of his obtaining relief

at law. ;

There is no possible way for respondent to get into

the law side of the federal court. There is, therefore,

no legal remedy on the law side of the federal court ©

which is the test of an adequate remedy at law defeat-

ing federal equity. jurisdiction. In the case of Barber v.

Barber, 21 Howard 591, 16 L. Ed. 226, this court said,

1. e. 229: N

„There is no objection to equity jurisdiction

in the courts of the United States that there is a

remedy under the local law. For the equity juris-

diction of the federal courts is the same in all of

the. states, and is not affected by. the existence or

nonexistence of an equity 9 in the state

tribunals.’ ’’

In the case of Henrietta Mills v. Rutherford County,

281 U. S. 121, 126, 50 S. Ct. 270, this court-in an opinion by

Mr. Chief Justice Hughes, refused to exercise equitable.

jurisdiction in a case brought under a state statute of N

a remedial character attempting to enlarge the equity

jurisdiction of the federal court. In so ruling, however,

the court said, I. c. 272: |

„The act of Congress with respect to the ex-

‘istence of such a remedy has reference to the ade-

quacy of the remedy on the law side of the federal

courts (Smyth v. Ames, 169 U. S. 466, 516, 18 S. Ct.

418, 42 L. Ed: 819; Chicago, B. & Q. Railway Com-

pan v. Osborne, 265 U. S. 14, 16, 44 S. Ct. 431, 68

L. Ed. 878; Risty v. Chicago, R. I. d P. Ry. Company,

270 U. S. 378, 388, 46 t. 236, 70 L. Ed. 641)

* one

In the case of Smyth v. Ames, 169 U. S. 466, 18 Sup.

Ct. Rep. 418, this court, speaking through Mr. Justice

_ Harlan, declared the law as follows, I. c. 422 (169 U. 8.

“L c. 516): |

„The adequacy or inadequacy of a remedy at

law for the protection of the rights of one entitled

upon any ground to invoke the powers of a federal

court, is not to be conclusively determined by the

‘statutes of the particular state in which suit may

be brought. One who is entitled to sue in a federal

circuit court may invoke its jurisdiction in equity

whenever the established principles and rules of

. equity permit such a suit in that court; and he can-

not be deprived of that right by reason of his being

allowed to sue at law in a state court on the same

cause of action.

In the case of Risty v. Chicago, R. I. & P. R. R. Co.,

270 U. S. 378, 46 Sup. Ot. Rep. 236, this court, speaking

through Mr. Justice Stone, declared the law as follows,

I. c. 240 (270 U. S. I. e. 388):

“ee * 5

the test of equity jurisdiction in a

federal court is the inadequacy of the remedy on the

law side of that court and not the madequacy of the

remedies afforded by the state courts. Smyth v.

Ames, 18 S. Ct. 418, 169 U. S. 466, 42 L. Ed. 819;

Chicago, B. d O. R. R. Co. v. Osborne: supra.’

There are a large number of decisions of the district

courts and various circuit courts of appeal declaring the

> *

same principle of law. We state this simply as bearing 3

on the large number of decisions following this court . g

in holding a legal remedy in the state court will not

defeat the equity jurisdiction of a federal district court.

In the case of City Bank Farmers Trust Company v. :

Schnader, 291 U. S. 24, 29, 54 S. Ct. 259, this court, said,

I. e. 261: none

As the statutory ‘remedy, if it be treated as an a

action at law, would lie only in the state court and is 1

not cognizable by the federal courts, either as- an

original action or by removability, its existence can-

not oust federal equity jurisdiction. Smyth v. Ames,

169 U. S. 466, 516, 18 S. Ct. 418, 42 L. Ed. 819; Chi-

cago, B. & O. R. R. Co. v. Osborne, 265 U. S. 14, 16,

44 8. Ct. 431, 68 L. Ed. 878; Risty v. Chicago, R. J.

é Pac. Ry. Co., 270 U. S. 378, 388, 46 S. Ct. 236, 70 L.

Ed. 641, Mathews v. Rodgers, supra, page 526 of —

‘U.S, @ 8. Ct. 217. ;

SERIATIM ANSWER TO PETITIONERS’ POINTS.

„(Following Order in Petitioners’ Brief.) |

. POINT A. e

The Circhit Court of Appeals Properly Overruled Peti-

, tioners’ Motion to Complete the Record.

It is naw contended that error was committed in

denying petitioners the right to have their motion to com-

plete the record sustained and the record completed by

adding thereto a provision of the policy insuring the real

estate providing that the liability thereof should be pro-

portionate to the total amount of insurance on said real

estate.

—

In the first place, we do not believe petitioners prop-

erly preserved this point in the lower cdurts. They filed

no such motion in the district court. They filed no such

motion in the United States Circuit Court of Appeals

until after an opinion had been handed down against them,

when in connection with their motion for rehearing they

filed such motion. (Tr. p. 19.) Coming so late it was

not the duty of the United States Cireuit Court of A’p-

peals to pass on the merits of this motion. Such mat-

ters must be timely raised or the point is not entitled to

consideration here. In phe case of Burnet v. Common

Wealth Improvement Company, 287 U. S. 415, 418, 53 8.

Ct. 198, this court said (I. e. 199): ee

„The board of tax appeals expressed no opinion

concerning the commissioner’s method of reckoning—

it was not requested so to do. There the respondent

relied entirely upon the second point. The circuit

court of appeals ruled only on the same point. In

such circumstanées we do not undertake to determine

what was not considered below.“

The rule thet point will not be considered by this

court on certiorari unless timely and properly raised be-

low is well established. Lynch v. United States, 292 U. 8.

571, 588, 54 S. Ct. 840, I. e. 847; New York Dock Company

v. Poenan, 274 U. S. 117, 123, 47 S. Ct. 482, 485.

POINT B.

The Circuit Court of Appeals Properly Held That Com-

plainant Could Maintain Its Bill in Equity Because It

Had No Adequate Remedy at Law in the Federal Court.

(a)

Petitioners ‘erroneously contend that if the circuit

court of appeals is right in holding these two policies can

be aggregated, in an action brought thereon in the equity

side of the federal court on the ground there is no

legal remedy on the law side of that court—separate

suits at law in a state court not being removable—that

every state court uit for small installments due on

policies whose face amount exceeds $3,000.00 would be

removable. ! ae

Petitioners cite the case of. Wright v. Insurance

Company, 19 Fed. (2d) 117 (C. C. A. 5), 276 U. S. 602,

‘as bearing out their contention that if the decision of

the circuit court of appeals in this case is permitted

to stand all insurance policies may be, removed where

future installments will amount to over $3,000.00. That .

ease is directly against petitioners’ contention. There it

is held that the court does not have jurisdiction where

the installments due amount to only $420.00 although

the liability as to future installments in the aggregate

amount to more than 83,000.00.

Further, in the case of Healy v. Ratta, 292 U. 8.

263, 272, 54 S. Ct. 700, I. c. 704, this court held future in-

stallments of taxes could not be added to those already

due to make up the jurisdietional amount where it was

contingent whether the future illegal taxes would be

collected. Future installments, on insurance policies

would always be contingent and could not be added to

make up the jurisdictional amount.

Petitioners assert the above rule has no applica-

tion ta actions such as this is. They label this action

a bill quia timet or bill of peace. They cite no authorities

80 holding and we have found none which establish —

—— 1

such exception. Furthermore, this is a bill in equity 0

for cancellation and it partakes only slightly of the

characteristics of bills of peace or quia timet. |

Petitioners further urge that to apply this rule to

this case would run counter to 36 Stat. 162, 28 U. S. C.

A., Section 379, prohibiting federal courts from enjoining

proceedings already pending in state courts. As we have

pointed cat (Point I). this action is for cancellation. of

two policies of insurance and an injunction against the

prosecution of law actions on said policies. The matter

con squarely within the original equity jurisdiction

of the United States District Court and the jurisdictional —

amount is involved. (Points I and III.)

The jurisdiction of the district court to grant the

injunction prayed is based on the protection of its own -

original jurisdiction. This has always been cheld not to

come within the provisions of the statute against in-

junctions just referred to.

In the case of Julian v. Central Trust Company,

193 U. S. 93, 112, 24 8. Ct. 399, this court said, I. e.

407 :

In such cases, where the federal court acts in

aid of its own jurisdiction and to render its decree

effectual, it may, notwithstanding Section 720, Rev.

Stat. (U. S. Comp. Stat., 1901, p. 581), restrain all

proceedings in a state court which. would have the

effect of defeating or impairing its jurisdiction.

Sharon v. Terry, 13 Sawy. 387, 1 L. R. A. 572, 36

Fed. 337, per Mr. Justice Field; French v. Hay, 22

) Wall. 290, 22 L. Ed. 857; Dietech v. Huide- Roper,

0 103 U. S. 494, 26 L. Ed. 497.“

In the case of Wells Fargo and Company v. Taylor,

254 U. S. 175, 183, 41 S. Ct. 93, this court said, I. c.

96:

„In recognition of this it has come to be segled

by repeated decisions and in actual practice that,

„where the elements of federal and equity jurisdiction

are present, the provision does not prevent the fed“

eral courts from enjoining the institution im the state

courts of proceedings to enforce local statutes which

are repugnant to the Constitution of the United

States (citing cases) or prevent them from maintain-

ing and protecting their own jurisdiction, properly ac- |

quired and still subsisting, by enjoining attempts to

- frystrate, defeat or impair it through proceedings

in the state courts (citing cases) or prevent them from

depriving a party by means of an injunction of the

benefit of a judgment obtained in a state court in.

circumstances where its enforcement would be con-

trary to recognized principles of equity and the stand-

ards of good conscience. (Citing cases.)

To the same effect holding the statute inapplicable

where the object is to protect the original jurisdiction

of the federal court, see Looney v. Eastern Texas R. Co.,

247 U. S. 214, 218, 38 S. Ct. 460, I. e. 402.

It is further contended that the ruling of the cir-

cuit court of appeals violates 36 Stat. 1163, 28 U. S. C.

A., Section 384, which provides for trial by jury. In

this, ye. believe petitioners are again in error. In the

caso Liberty Oil Company v. Condon National Bank,

U. S. 235, 242, 43 S. Ct. 118, this court in an opin-

on by Mr. Chief Justice Taft, after referrimy to the

Seventh Amendment to the Congtitution, preserving jury

trials in controversies exceeding $20.00, said, I. c. 121:

i ;

„Where an equitable defense is interposed to

a suit at law, the equitable issue raised should first

be. disposed of as iq a court of equity and then, if

an' issue at . it is triable to a jury.

Massie v. Stradford, 17 Ohio St. 596; Dodsworth v.

Hopple, 33 Ohio St. 16, 18; Taylor v. Brick Co., 66

Ohio St. 360, 366, 64 N. E. 428; Sutherland, Code Pl.

and Pr., Section 1157. The equitable défense makes

the issue equitable, and it is to be tried to the

judge as a chancellor. The right of trial by jury

is preserved exactly as it was at common law. The

same order is preserved as under the system of

separate courts. If a defendant at law had an

equitable defense, he resorted to a bill in equity to

enjoin the suit at law, until he could make his

equitable defense effective by a hearing before the

chancellor. The hearing on that bill was before the

chancellor, and not before a jury, and if the prayer

of the bill was granted, the injunction against the

suit at law was made perpetual, and no jury trial

ensued. If the injunction was denied, the suit at

law proceeded to verdict and judgment. This

was the practice in the courts of law and chancery

in England when. our Constitution and the Seventh

Amendment were adopted, and it is in “the light of

such practice that the Seventh Amehdment for. it is

construed. si

To the same effect see American Mills Company v.

American Suréty Co., 260 U. S. 360, 364, 43 S. Ct. 149,

151. Banker v. Ford Motor Company, 69 Fed. (2d) 665,

665 (U. S. C. C. A. 3rd).

(59

Petitioners contend complainant's bill in equity fails

to show reasonable grounds to apprehend that they will

bring two suits at law in the state courts on these two

policies and thereby harass and put respondent to ex-

| 40

pense. We first direct the court’s attention to respond-

ent’s petition (Tr. p. 3) where it is alleged that peti-

tioners procured the several policies involved as a part

of a general plan and scheme to defraud’this insurance

company and thereafter, in furtherance of the scheme,

| petitioners set fire to this property for the purpose of

collecting a large sum of money. Following that, the

petition alleges :

„That the said respondents have filed proof of

Ioss against all of said r a total.

loss, although said loss was not total, und that they

have threaténed to sue complainant upon the two

policies issued by complainant as hereinbefore set

forth, to recover the face amount of said policies. 0

These allegations must be taken as true. In the case

N of + State. of Kansas v. State of Colorado, 185 U. S. 125,

145, 22 S. cr 552, this court said, I. e. 559:

„The general rule is that the truth of material

and relevant matters set forth with requisite pre-

cision: are admitted by demurr er

— the case of Pennsylvania v. West Virginia, 262

v. S. 553, 593, 43 8. Ct. 658, 663, this court said:

„One does not have to await the consummation of

tendered injury to obtain preventative relief. If the

injury is certainly impending, that is enough.

We direct attention to the fact that under the stat-

ute (36 Stat. 1162, 28 U. 8. C. A., Section 379) which

petitioners eite at page 190 of their brief, the federal

court could not enjoin proceedings already pending in

the state court on these different policies. Petitioners

’ . 7

want to compel | respohdent to wait until petitioners

bring their suits in the state court and when it is too late

under the above statute for respondent to bring an action

in equity. As authority for our contention that. respond-

ent did not have to wait until such actions were instituted

in the state court and there was a legal certainty it would

be compelled to defend such actions, we direct attention

to the case of Swift & Co. v. United States, 276 U. 8.

311, 326, 48 S. Ct. 311, where the court said, I. c. 315:

( „The argument ignores the fact that a suit. for

an injunction deals priniarily, not with past viola-

tions but with threatened future ones; and that an

injunction may issue to prevent future. wrong, al-

though no right has yet been violated. Vicksburg

Waterworks Co. v. Vicksburg, 185 U. S. 65, 82, 22

S. Ct. 585, 46 L. Ed. 808; Pierce v. 1 of Sisters,

268 U. S. 510, 536, 45 S. Ct. 571, gum . 1070, 39

A. L. R. 468.“

See, also, Standard Oil * of New Meuico ¥.

Standard Oil Company of Cafpformia, 56 Fed. (2d) 973,

“ye (U. S. C. C. A. 10th),

In the éase of Vicksburg Water Works Company v.

Vicksburg, 185 Us. 65, 82, 22 S. Ct. 585, this court said,

I. e. 592: 0

„lt is further contended that the bill does 10

disclose any actual proceeding on the part of the

city to displace complainant’s rights under the cop-

tract, that mere apprehension that illegal action may

be taken by the city cannot be the basis of enjoining

such action, and that, therefore, the circuit court did

right in dismissing the bill. We cannot accede to

this contention. It is one often made in cases where

billa-in equity a are filed to prevent anticipated and

threatened action.. But it is one of the most valuable

features of equity jurisdiction, to anticipate and pre-

vent a threatened injury, where the damages would

be insufficient or irreparable. exercise of such

jurisdiction is for the benefit of both parties; in dis-

closing to the defendant that he is proceeding with- .

out warrant of law, and in protecting the complain-

ant from injuries which, if inflicted, would be wholl¥

destructive of his rights.“

Here the allegations show petitioners obtained these

two policies as part of a general plan and geheme to de-

fraud respondent apd other ¢nsurance companies; that,

thereafter, they caused the property to be set fire in

furtherance of such scheme; that, thereafter, they filed

proofs of loss with respondent and the other companies

claiming a total loss and demanding the full face value

of the policies. . The bill then alleges that petitioners are

threatening to institute actions at law in the state court

to recover. As pointed out this allegation should be |

taken as true here. Furthermore, the facts following this

conspiracy show there is danger of such action. To

bring the conspiracy to fruition it is necessary for peti-

tioners to collect. This can only be done by a suit since

respondent refuses to voluntarily submit to the payment

of its policies under the facts here. It cannot be seriously

contended that there is no danger ‘of more than

one suit being filed beeause under the, Missonri Code the

actions on these two policies have to be separately main-

tained since petitioners are not jointly interested in

both causes of action. Under the Missouri Code, actions

can be joined only where all parties are interested in

each arate cause of action or count there ——

(Sec. „R. S. Mo., 1929, supra.)

— “

What is said with reference to an action for can-

Allation not being maintainable on matured notes, leases

and nonnegotiable instruments refers to the situation

where there is an adequate remedy. at law. If there is

only one instrument ivo and une suit threatened, the

remedy at law is adequate. Here, , there must

necessarily be tw * suits at law and tho Joe remédy is

not adequate as shown herein unger Paint #¥.

Where the requisite ount is involved and the

matter comes within the Sriginal equity jurisdiction of

the Federal District Court the jurisdiction of tha, court

may not be defeated by an actiom at law in the state

court. It may only be defeated "ye adequate rr

at law on the law side of the feder court.

The case of Cable v. Uniféd States Life Insurance.

Company, 191 U. S. 288, and cases AM that type are

clearly distinguishable. In thgt case, there existed an

adequate remedy at law on tle law side-ef the federal

court: The requisite amount was involved on the law

side to permit of removal of the cause to the law side

of that court. : : ; an

In the case at bar these two policies for 83,000.00

and $1,500.00, respectively, could not be joined at law by

respondent. There was, therefore, no way in which to

get respondent’s cause of action on the law side of the

federal court since there was no adequate remedy on tile

law side of the federal court and since the matter was

within the jurisdiction of the equity side of the federal

court, it follows that respondent was entitled to file its

‘suit directly in the equity side of the federal ‘court. The

circuit court of appeals in so holding followed numerous

decisions of this and other circuit courts of appeals.

In the case of City Bank Farmers Trust Company

v. Schnader, 291 U. 8.24, 29, 54 S. Ct. 259, this court

said, I. c. 261:

If the statutory remedy, if it be treated as an

action at law, would lie only in the state court and

is not cognizable by the federal-courts, either as an

original action or by removability, its existence can-

not oust federal jurisdiction. Smyth v. Ames, 169 U.

S. 466, 516, 18 S. Ct. 418, 42 L. Ed. 819; Chicago,

B. d O. R. R. Co. v. Osborne, 265 U. S. 14, 16, 44 8.

Ct. 431, 68 L. Ed. 878; Risty v. Chicago, R. I. 4 Pac.

Ny. Co. 270 U. S. 378, 388, 46 S. Ct. 236, 70 L. Ed.

641; Mathews v. Rodgers, supra, page 526 of 284 U.

8., 52 8. Ct. 217.”

In the case of Risty v. Chicago, R. I. & Pac. Ry. Com-

gang, 270 U. S. 378, 388, 46 8. Ct. 236, this court said, I.

C. 240: ö 9

„The remedy by appeal to the state court under

Section 8469 does not appear to be coextensive with.

the relief which equity may give.. In any event, it is

not one which may be availed of at law in the federal

courts, and the test of equity jurisdiction in a fed-

eral court is the inadequacy of the remedy on the law

side of chat court and not the inadequacy of the reme«:

affotded by the state courts. Smyth v. 1 18 S. Ct.

418, 169 U. S. 466, 42 L. Ed. 819; Chicago, B. & O. R.

>. = Co. v. Osborne, supra.

See, also, Smyth v. Ames, 169 U. S. 466, 18 S. Ct.

418, 69 Fed. (2d) 171, 176 (U. S. C. A. 8th) certiorari

denied, 292 U. 8. 632, 54 S. Ct. 641. American: Mutual

Liability Insurance Company y. McDonaugh, 61 Fed. (2d)

558, 563 (U. S. C. C. A. 7th) (certiorari denied 288 U. 8.

602), and numerous decisions of this and other courts

cited in the above cases. —

Respondents had no adequate remedy at law on the

law side of this court. There was no way in which they

could get this action into the law side of the federal

court. Suit could not be maintained at law on both pol-

icies in the state-court since not all the parties were in-

terested in béth actions. Petitioners had the right and

in conformity to the Missouri Code must file two suits

‘at law on these policies, neither of which would involve

the jurisdictional amount to permit removal to the law

side of the federal court. Since one suit in equity in the

federal court could be maintained on both policies as here-

tofore pointed out it follows the right to maintain such

suit cannot be defeated because of any supposed adequate

remedy at law in the state court. There is no adequate

remedy at law-in fact no remedy at law whatever on

the law side of the federal court. Hence, equity jurisdice-

tion here cannot be defeated on the ground of an adequate.

remedy at law as shown by the above authorities.

| | (d)

Petitioners cite 1 Stat. 82 (Section 267 of the Judicial

Code) 36 Stat. 1163, which provides that no suit in equity

may be maintained in the courts of the United States in

any case where ‘‘an adequate and complete remedy may be

had at law.’’ This section refers to an adequate remedy

at law in the federal court. In the case of Henrietta Mills

- 3

v. Rutherford County, 281 U. S. 121, 126, 50 S. Ct. 270,

this court in an opinion by Mr. Chief Justice Hughes re-

ferring to the section of the judiciary act with reference

to adequate remedy at law (281 U. S. 121, 123, 126, 50 S.

Ct. 270, 271) said, I. e. 272:

»The act of Congress with respect to the ex-

istence of such a remedy has reference to- the ade-

quacy of the remedy on the law side of the federal

courts (Smyth v. Ames, 169 U. S. 466, 516, 18 S. Ct.

418, 42 L. Ed. 819; Chicago, B. & O. Railroad Com-

pany v. Osborne, 265 U. S. 14, 16, 44 S. Ct. 431, 68

L. Ed. 878; Risty v. Chicago, R. I. & P. Railway

Company, 270 U. S. 378, 388, 46 S. Ct. 236, 70 L. Ed.

641) and in this case there would have been an

adequate remedy at law, not only in the state court,

but also in the federal court, if petitioners had been

able to show a violation of the Federal Constitution.

(Judicial Code, Section 24 (28 U. S. C. A., Section

41).) “ ; .

Furthermore, if it were material, it seems to us clear

enough that any remedy at law would not be ‘‘as certain,

complete, prompt and efficient to attain the ends of

justice as the remedy in equity.“ Keaton v. Little, 34

Fed. (2d) 396, 398 (U. S. C. C. A. 10th) see, also, Dawson.

v. Kentucky Distillers and Warehouse Company, 255 U.

S. 288, 296, 41 8. Ct. 272, 275 and Risty v. Chicago, R. J.

4 P. Ry. Co., 270 U. S. 378, 388, 46 S. Ct. 236, 240.

What is said by counsel for petitioners with reference

to nonremovable cases constituting a ground for federal

equity jurisdiction is extremely misleading. What this

court has held in the many cases cited by us under (c)

supra, is that where the matter is within the original

equity jufisdiction of a federal court and in equity the

jurisdictional amount is involved, then the federal equity

court clearly may take jurisdiction on the ground there

is no adequate remedy at law in the federal court. What

‘is said in the opinion of the circuit court of appeals here

‘and in the other cases cited has reference to a situation

where the matter is of equitable cognizance and the juris-

dictional amount is involved in equity.

The statute does not limit the jurisdiction of the

federal district court to cases where the jurisdictional

amount is involved both at law and i in equity. If the suit

is properly in equity as here and the jurisdictional

amount is involved in equity, as it is here, then the case

may not be thrown back into the state court merely

because the jurisdictional amount would not be involved

if complainant were attempting to maintain the action

at law. .

(e)

Petitioners urge that a bill for cancéllation of this

type should be added to the list of exceptions where

this court has declined jurisdiction on the ground there

were adequate femedies in the state law courts. An ex-

amination of those cases will show this case does not

conform to the type of cases grouped under the excep-

tions. The federal courts are very reluctant to inter-

tere with revenue acts of the state, rate enforcement

cases, state judgments, and habeas corpus proceedings,

where the state courts do have jurisdiction and have

exercised that jurisdiction. In other words, the federal

courts are en to interfere with the operation of

‘state governments. Bowley v. Chicago &é VN. W. Ry. Co.,

68 Fed. (2d) 527, 528 (certiorari denied), 54 S. Ct. 716.

They are not, however, reluctant. to protect their own

jurisdictions by injiinction or otherwise in cases like the

one at bar, which properly comes within the jurisdiction

of the federal court. Here the suit in equity in the federal

court was filed before any action was taken in the state

court. The matter was within the jurisdiction of the

federal court and as shown by the authorities (Point I)

the federal courts have not hesitated under such cireum-

stances to protect their own jurisdiction by appropriate

means. ‘There is no reason to add this case to the group

where the parties are relegated to their remedy in the

state court as this case has no characteristics in common

with the cases placed in such exception.

()

This ease does properly come within the equitable

jurisdiction of the federal court as heretofore pointed

out. (Point I.) We here desire to call attention to the

inconsistency of petitioners under Point E. Where it best

suits their purpose. they refer. to actions like ours as

„bills for cancellation,“ under this heading they refer to

it as a “bill quia timet.”” It is our contention ‘that

this action is a bill for cancellation and not a bill quia

timet although possibly having some of the character-

istics of such latter action. (See Point C(a).)

POINT C. :

The Circuit Court of Appeals Properly Held There Was

Equitable Jurisdiction for Cancellation Reinforced by

the Ability to Avoid a Threatened Multiplicity of Suits.

1 (a) 1

Petitioners seek to label this action a bill of peace

under this heading and charge that such an action

may not be maintained until respondent’s rights are

first established at law. At page 24 of their brief, the

page preceding the one to that where they contend this

is a bill of peace, petitioners classify this action as a

bill for cancellation and ask this court to catalogue bills

for cancellation under the exceptions to federal equitable

jurisdictions such as revenue enforcement’ cases, state

court judgments, etc. It is our position that this is

essentially a bill for cancellation with the incidental’

feature of an injunction supplementing the remedy by

cancellation.

As pointed out under (e) of Point C of this brief it

is apparent that petitioners cannot join both suits at law

but will have to maintain two law actions if they seek to

recover on both policies.

We contend this is not primarily a bill of peace and

that the rule requiring prior adjudication at law does

not apply to a case like this where the avoidance of.

multiplicity of suits is merely incidental and used only

to give protection after the court has decreed cancella-

tion.

Furthermore, even where the action is solely a bill

of peace and that is the only equity involved, the rule

requiring a prior adjudication has been greatly relaxed.

Petitioners cite 21 C. * Section 50, page 77. It is there

stated:

But relief has — been afforded with-

out awaiting a trial and judgment at law, partic-

ularly in the case of repeated prima facie trespasses,

waste or where a plaintiff’s title is admitted or not

converted. The rule has been’ said to be one of

expediency .an] policy rather than an essential condi-,

tion of equitable jurisdiction.’’

Here, if respondent had waited until there had been

an adjudication at law, it would have lost its right to

bring this bill in equity because 36 Statute 1162, 28 U. S.

C. A., Section 379, prohibits federal courts from enjoin-

ing proceedings already pending in state courts. This

situation should certainly come within the exception, even

if this were strictly a bill of peace, otherwise, respond-

ent’s right to equitable relief would be entirely destroyed.

(b)

Petitioner’s, contention there can be no multiplicity of

suits is entirely fallacious. It is at once apparent that

petitioners cannot join the two distinct claims. here in-

volved in one suit. Petitioner, Mary Di Giovanni, has no

interest in the suit to recover on the policy of insurance

on the personal property. Since not all the parties are

interested in the subject, matter of actions on the two

policies they cannot be joined in one suit even under

separate counts.

Sec. 765. Causes or Action Tnar May Be —

iv THE Petrtion.—The plaintiff may unite, in the

same petition several causes of action, whether they

—

A 51

be such as have been heretofore denominated legal

or equitable or both, where they all arise out of : First,

the same transaction or transactions connected with

the same subject of action; or, second, contract, ex-

press or implied; or, third, injuries, with or without

force, to person and property, or either; or, fourth,

injuries to character; or, fifth, claims to recover real

property, with or without damages for the withhold-

ing thereof, and the rents and profits of the same;

or, sixth, claims to recover personal property, with

or without damages, for the withholding thereof; or

seventh, claims by or against a party in some repre-

sentative or fiduciary capacity, by virtue of a contract,

, or by operation of law. But the causes of action so

united must all belong to one of these classes, and

must affect all the parties to the action, and not re-

quire different places of trial, and must be separately

stated, with the relief sought for each cause of action,

in such manner that they may be intelligibly dis-

tinguished. (R. S., 1919, Section 1221.) (Italics ours.)

There must, therefore, be two suits filed, if peti-

tioners seek to recover on both policies. It is suggested

that the defendant will have the same control over the

cases in the state court as the plaintiff. This is fallacious

on its face. The plaintiff has the right to institute these

actions. in any court having jurisdiction when it chooses

and in whatever order it chooses, In the regular course,

such actions are tried in the order in which plaintiff .

chooses to file them and the defendant has no choice in the

1 matter, but is at the merey of the plaintiff as to when,

wuhere and in what order the claims will be litigated.

aos It was also contended that if the suit on the building

policy in which both petitioners are involved were tried

‘ first, then the judgment in that suit would be res adjudi-

cata against Pete Di Giovanni. This statement is not en-

* oo

titled to be taken at face value. In the first place, peti-

tione? could file a motion for a new trial and subsequently

take an appeal in that case, thereby suspending said judg-

ment and preventing the same becoming a final judgment.

The defense of res adjudicata can be sustained only upon

proof of a final judgment.

5 In the case of Bodkin v. Edwards, 255 U. S. 221,

223, 41 Sup. Ct. Rep. 268, this court said, I. c. 268:

‘‘Bodkin then took a further appeal to, this

‘court, the decision of the circuit court of appeals

not being final under Section 128 of the Judicial

Code. (Comp. St. —

In the case of Merrion v. Saalfield, 36 Sup. Ct.

Rep. 477, 241 U. S. 22, this court declared the law as

follows, l. c. 28:

“But it is familiar law that only a final judg-

ment is res adjudicata as between the parties, and

it is evident that a decree-cannot be res adjudicata

as against a.third party participating in the de-

fense unless it is so far final as to be res adjudicata

against the defendant himself. Hence, if the. de-

cree of September 11th was not final as between ap-

pellant and Saalfield, it cannot be res adjudicata as

against Ogilvie; and thus the fundamental ground

for proceeding against the latter by supplemental

bill with substituted service of process disappears.

This sufficiently shows ‘the weakness of appellant’s

position, which, upon analysis, is found to be this:

that, upon the theory that Ogilvie would be es-

topped from a final decree if and when made, it

sought to bring him into the suit, before final de-

cree, as if he were already estopped. However

convenient this might be to a complainant in ap-

pellant’s position, it is inconsistent with elementary

principles.

As already stated, there is no certainty that the

building policy in which bo ‘petitioners, are interested

will be tried first. Petitiorlers have the sole power of

choice in this matter and can file the prop-

erty suit first and try the same first if they choose.

There is n of practice or procedure which enables

defen to govern the order in which the cases are

tried. urther, there is no rule of practice or pro-

cedure which entitles defendant to a hy in. the second

suit until the first suit can be a adjudicated and

the defense of res adjudicata_made available. The re-

sult, therefore, is that petitioners can force the defend-

ant to go to the trouble and expense of trying both

cases, even though defendant~isguccessful in the first.

If the cases are tried practically af the same time, peti-

tioners can also put the defendant to, the expense of an

appellate review of both cases, either as appellant or

appellee. Upon analysis, therefore, the defense of res

adjudicata is seen to be of no practical value in shield-

ing defendant from the necessity of * both

a actions.

. is further contended that it will be time —

to file.a bill in equity to prevent a multiplicity of suits

when it actually appears that there will be a multiplic-

ity. The fallacy of this argument is pointed out by

petitioners ‘themselves at pages 11 and 19 of their brief

where they cite 36 Stat. 1162, 28 U. S. C. A., Section

379, prohibiting federal courts from enjoining proceed- *

‘ings already pending in state courts. Petitioners would

compel us to delay this action until the statute pro-

hibits the district court from granting us the relief

54 om

sought. The mere statement of this proposition dem-

onstrates its unsoundness.

Under the law of Missouri, which governs here, as it

is probable the two actions at law will be instituted in that

state, defendant cannot avoid defending two suits at

law on these two policies unless petitioners choose to

maintain only one action at a time. The very purpose

of the equitable remedy is. to save a defendant from

this predicament.

(e)

Petitioners contend that if Pete Di Giovanni's suit

on the personal property policy is tried first and de-

feated, it will prevent the maintaining of a suit on the

real property policy by husband and wife as tenants

hy the entirety. In the first place, Pete Di Giovanni ‘can

file a motion for a new trial and appeal his case, thereby

suspending said judgment and preventing it becoming

a final judgment available as a defense under pleas

of res adjudicata until after defendant had been com-

pelled to’ stand trial in the second case on the real

property policy. Furthermore, the defense of res

adjudicata as to Pete. Di Giovanni would not be avail-

able against either him or his wife in an action main-

tained by them as tenants by the entirety. The case of

. Stifel’s Union Brewing Company v. Cary, 273 Mo. 159,

201 S. W. 67, declares the law of Missouri to be that

property held by the entirety is not subject to the debts

of either tenant by the entirety. This demoristrates the

separate nature of the titles of persons holding by the

entirety. As the interest of the wife in such case is

not affected by a judgment against her husband then

it follows she would not be barred of her rights be-

cause a defense of res adjudicata would be good against

her husband alone. It is the law of Missouri that where

persons have a joint estate or joint interest in property,

a defense good as against one of them only is not avail-

able in a suit brought by them jointly. ‘n the case of

Herrell v. St. Louis-San Francisco Ry. Co., 324 Mo. 38,

23 S. W. (2d) 102, the Supreme Court of Missouri in

the father was not available in action brought by the

mother and father jointly for the death af their minor

son. The case of Fulbright v. Phoenix Insurance Com-

pany, 329 Mo. 207, 44 S. W. (2d) 115, simply holds

that a husband who obtains insurance representing him-

self as the owner in fee of the real estate insured has

misrepresented the title he cannot recover in a suit main-

tained by him alone where it appears he holds title with

his wife by the entiréty.

POINT. D.

The Bill Alleged the Face Value of the Two Policies

Was $3,000.00 and $1,500.00 Respectively. The Bill

Alleged Petitioners Were Claiming a Total Loss and

Demanding the Pull Face Value of the Policies. The

Jurisdictional Amount Was, Therefore,

Pétitioners seek to get before this court, by their

motion to complete the record, the provision of the real

estate insurance policy for $3,000.00 involved here to the

effect that liability under, that policy would be propor-

tionate to the total amount of insurance carried. As we

— — —

have already pointed out, no attempt was made to get

this provision in the record until after the opinian of

the circuit court of appeals was rendered against peti-

tioners. We believe the point was not properly Pre-

served and will not be considered by this court but even

it that provision were before this court there is no merit

in petitioners’ contention.

Respondent alleges petitioners are claiming a total

loss and are demanding the full face of the policy. These

allegations should be accepted as true as petitioners ad-

mit. Grand Chute v. Winmnegar, 15 Wall. (U. S.) 373,

376, 21 L. Ed. 174, cited by petitioners. (Br. p. 28.)

The fact that on a trial respondent might be able to

convince the jury that the property was not worth more

than $6,000.00 and might successfully maintain its de-

fense that it was only liable for a proportionate part

of the loss depending on the proportion of its coverage

to the total coverage does not eliminate the fact that the

amount in dispute is the full face of the policies or

$4,500.00. The possibility respondent might establish the

defenses mentioned does not. cut down the amount in-

volved. Respondent may not be forced out of the fed-

eral court on the theory less than the jurisdictional

amount is involved as long as it is exposed to the danger

. of a judgment greater than the jurisdictional amount un-

J less it is successful in maintaining defenses cutting the

amount down. In the case of Schunk v. Moline, Milburn

4 Stoddard Company, 13 S. Ct. 416, 147 U. S. 500, 504,

this court said:

* '

57 5

„Although there might be a perfect defense to

the suit for at least the amount not yet due, yet the

fact of a defense, and a good defense, too, would not

affect the question as to what was the amount in

dispute. Suppose an action were brought on a non-

negotiable note for $2,500.00, the consideration for

which was fully stated in the petition, and which was

a sale of lottery tickets, or any other matter dis-

tinctly prohibited by statute, can there be a doubt

that the circuit court would have jurisdiction? There

would be presented a claim to recover the $2,500.00;

and, whether that claim was sustainable or not, that

would be the real sum in dispute. In short, the fact

of a valid defense to a cause,of action, although

apparent on the face of the petition, does not dimin-

ish the amount that is claimed, nor determine what

is the matter in dispute; for who can say in advafice

that that defense will be presented by the defend-

ant, or, if presented, sustained by the court?’’

Furthermore, respondent alleges in its bill that the

face of the policies aggregated amounts to. $4,500.00,

that petitioners claim a total loss and are demanding the

full face value of the policies. (Tr. pp. 1-4.) The peti-

tion charges there is involved the sum of $4,500.00. This

court has repeatedly ruled as petitioners admit [(Peti-

tioners’ Brief pp. 30 and 31) that the amount claimed is

the amount in dispute unless it conclusively appears

from the face of the pleadings that a less amount is

involved.

In the case of Barry v. Edmunds, 6 Sup. Ct. Rep.

501, 116 U. S. 550, where this court said, I. c. 559:

„The order of the circuit court dismissing the

cause on this ground is reviewable by this court on

writ of error by the express words of the act. In

making such an order, therefore, the cirenit court

58 af ” —

exereises a legal and not a personal discretion, which

must be exerted in view of the facts sufficiently

proven, and controlled by fixed rules of law. It

might happen that the judge, on the trial or hearing

| of a cause, would receive impressions amounting to

a moral certainty that it does not really and sub-

stantially involve a dispute or controversy within

the jurisdiction of the court. But upon such a per-

sonal conviction, however strong, he would not be at

liberty to act, unless the facts on which the persua-

sion is based, when made distinctly to appear on the

record, create a legal certainty of the conclusion _

based on them. Nothing less than this is meant by

the statute when it provides that the failure of its

jurisdiction on this account ‘shall appear * the .

satisfaction of said circuit court.’ ’’

Furthermore, when the bill alleges on its face the

: jurisdictional ‘amount is involved the burden is on the

defendant to prove less than the jurisdictional amount

is involved. See Healy v. Ratta, 292 U. S. 263, 271, 54

S. Ct. 700, 704, Hunt v. New York Cotton Exchange, 205

U. S. 322, 333, 27 S. Ct. 529, 532. a

In the case of Wetmore v. Rymer, 18 Sup. Ct. Rep.

295, 169 U. S. 115, this court stated the law as follows,

I. e. 128:

„Applying the law as heretofore stated by this

court, in the cases cited, that a suit canhot be prop-

erly dismissed by a circuit court as not substantially

involving a controversy within its jurisdiction, unless

the facts, when made to appear on the record, create

a legal ceftainty of that conclusion, we conclude that,

in the present case, the want of jurisdiction was not

made clear, and that the evidence before that court

did not warrant the dismissal of the action for the

want of jurisdiction. .

The judgment of the circuit court dismissing the

action is accordingly reversed, and the cause is re-

manded with directions to restore the judgment on

the verdict.’’ :

In the case of Put-in-Bay F. L. & R. Co. v. Ryan,

181 U. S. 409, 431, 21 S. Ct. 709, this court said, I. c. 717:

{ „And it has been several times decided by this

court that a suit cannot properly be dismissed by a

circuit court as not involving a controversy of an

amount sufficient to come within its jurisdiction, un-

less the facts, when made to appear on the record,

create a legal certainty of that conclusion. Barry

v. Edmunds, 116 U. S. 550, 29 L. Ed. 729, 6 Sup. Ct.

Rep. 501; Wetmore v. Rymer, 169 U. 8. 115, 42 L.

Ed. 682, 18 Sup. Ct. Rep. 293.“ a

In the * of Beecher v. Pan-American Life Insur-

ance Company, 73 Fed. (2d) 263, the Circuit Court of

Appeals for the 5th Circuit said, I. e. 264:

„The court is not chargeable with error in

refusing to dismiss the suit as not involving a con-

troversy of an amount sufficient to come within its

jurisdiction, unless the facts, when made to appear

on the record, create a legal certainty. of that con-

clusion. Put-in-Bay Waterworks, etc., Co. v. Ryan,

181 U. S. 409, 431, 21 S. Ct. 709, 45 L. Ed. 927;

Wetmore v. Rymer, 169 U. S. 115, 122, 128, 18 8. Ct.

293, 42 L. Ed. 682. "4

Under the ruling of the above cases it seems ap-

parent petitioner’s contention is without merit. We

submit that it does not appear to a legal certainty on

this record that an amount less than the 83 —

amount is herein involved.

ö rolex R.

The Circuit Court of Appeals Properly Held the Two

Claims Arising under the Two Policies of Insurance

Could Be Tied Together for the Purpose of Ascertaining

the Amount Involved for Jurisdictional Purposes.

(a and b)

The issues under this heading have been discussed by

us under Point III, a and b, to which we refer this court.

For all the reasons suggested herein, we respectfully

submit that the opinion and decision of the circuit court

of appeals in this case was right and should be affirmed

by this court. / |

Respectfully submitted,

Fenton Hume,

Attorney for. Respondent.

Watrer A. Raymonp,

Hume & Raymonn,

Of Counsel.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.