
    Bankers Life Co. v. Waters et al.
    (Decided October 20, 1930.)
    
      Mr. David P. Bowden, for plaintiff.
    
      Messrs. Howell, Roberts & Duncan, for defendant B. A. Waters.
    
      Messrs. Bernon, Mulligan, Keeley & LeFever, for defendant Clara H. Corlett, administratrix.
   Richards, J.

The Bankers Life Company, plaintiff, filed this action in the court of common pleas in interpleader, and averred in substance that it had issued a life insurance policy in the amount of $10,000 on the life of Homer B. Corlett, now deceased, and that the original beneficiary was Clara H. Corlett, wife of the assured. The plaintiff further averred that after the issuance of the policy the beneficiary was changed so that the amount of the policy was made payable to tbe executor or administrator of Dr. Corlett’s estate, and that tbe widow is now' acting as administratrix of the estate and claims tbe amount due on tbe policy both as tbe original beneficiary and as administratrix of tbe estate. Plaintiff further averred that tbe policy bad been assigned to tbe defendant B. A. Waters, who claims tbe amount due by virtue of tbe assignment; and plaintiff admitted its liability under tbe policy, paid tbe amount due on tbe policy into court, and asked to be discharged from liability. Thereupon issues were made by tbe several claimants, and tbe case was tried to tbe court, resulting in a judgment to tbe effect that the defendant B. A. Waters was entitled to tbe proceeds of tbe policy. From this judgment both appeal and error have been prosecuted to this court by Clara H. Corlett, as administratrix, and tbe case has been beard-upon tbe motion to dismiss tbe appeal; tbe contention made on behalf of B. A. Waters being that tbe case is not one in chancery and not appealable.

In 1 Pomeroy’s Equity Jurisprudence (4th Ed.), Sections 170 and 171, the author classifies exclusively equitable remedies, and embraces interpleader in one of tbe classes.

It seems clear that tbe original jurisdiction in interpleader was in chancery, but tbe proceeding has been regulated, in part, by statute. Section 11265, General Code, provides for interpleader upon affidavit of the defendant before answer, but this section is not broad enough to cover tbe entire field of interpleader and has no relation to an action brought by a plaintiff bolding a fund to which claim is set up by different claimants. Interpleader is peculiarly an equitable remedy where various persons, whose titles are connected by being derived from a common source, claim the same thing from a third person, and authorizes such person to maintain an action requiring them to interplead and set forth their claim. The equitable character of interpleader is clearly stated in 4 Pomeroy’s Equity Jurisprudence (4th Ed.), Sections 1320 and 1329. See also 33 Corpus Juris, 466.

We are not now concerned in determining whether the method provided in the statute above cited is or is not of an equitable character, for the case under consideration is not brought under that statute, but by a plaintiff under equitable principles existing long before the enactment of the statute, and still existing, for the statute is not broad enough to cover all classes of interpleader. As was said by Spear, J., in the course of the opinion in First National Bank of Cadiz v. Beebe, 62 Ohio St., 41, 44, 56 N. E., 485, 486: “That the equitable action of interpleader still survives, we think has been the common understanding of the bench and bar since the enactment of the code.”

This court is of the opinion that the action is in chancery, and hence, under the Constitution as amended in 1912, appealable, and that the motion to dismiss the appeal should be overruled.

Our attention is called to Union Trust Co. v. Lessovitz, 122 Ohio St., 406, 171 N. E., 849, decided by the Supreme Court May 21,1930, holding that when a motion to dismiss an appeal is sustained the appellant has a right to prosecute error to the Supreme Court from the judgment of dismissal, and that the pending error case should, in the meantime, be held in abeyance. But, in the instant case, the motion to dismiss the appeal is overruled, and that is not a final order to which error will lie, and therefore this case on appeal will be forthwith assigned for trial.

Motion to dismiss appeal overruled.

Williams and Crow, JJ., concur.

Judges Williams and Richards, of the Sixth Appellate District, and Judge Crow, of the Third Appellate District, sitting in place of Judges Vickery, Levine and Cline, of the Eighth Appellate District.  