United States v. Sentinel Fire Ins. Co.

McCORD, Circuit Judge

(concurring in the dissent).

Is this a true bill of interpleader, a suit in the nature of an interpleader, a statutory interpleader, or a civil action of inter-pleader, and did the court below have jurisdiction of it on the ground of diversity of citizenship between adverse claimants? If so, should the appellants have been enjoined from the prosecution in the state court of their suits pending therein against the insurance companies? There are several reasons why these questions should be answered in the negative.

This action was not authorized under the federal practice, and the injunction should be dissolved, because the case does not come within the requirements of the federal interpleader statute that reduces the jurisdictional amount to $500. The amount in controversy here upon each policy is less than $3,000 and more than $500, exclusive of interest and costs. The several amounts due under each policy may not be combined to obtain the jurisdictional amount of over $3,000, which is necessary to confer jurisdiction in ordinary diversity cases.1 Moreover, even if it has jurisdiction, the federal court should withhold its exercise until the state court speaks upon a doubtful question of state law, involving two state decisions one of which is claimed to have been overruled by implication. A decision by this court on the merits may be set aside in principle at any time by the Supreme Court of Mississippi.

There is no contention by the parties that this is a true bill of interpleader; but the argument is that the remedy, which was invoked by the plaintiffs below, was in the nature of an interpleader, and was authorized by 28 U.S.C.A. § 41(26), as amended, New Title 28 U.S.C.A. § 1335,2 and Rule 22 of the Federal Rules of Civil Procedure. Said ■ rule and statute have abolished many requirements of the ancient remedy. The result is that the practice *231at this time is more favorable to plaintiffs than it has ever been in suits of this character in the federal courts. This does not mean, however, that there are no limits to the uses or abuses of the federal remedy by interpleader; or that, merely by labelling its complaint an action of inter-pleader, a plaintiff with a dual or multiple liability may pay into court an amount sufficient to satisfy one creditor and compel another to litigate over a fund that is equal to an amount owing in any event to one of the alleged claimants.

There are still some requisite characteristics of the remedy of interpleader. These are important not only for jurisdictional purposes but because a court of the United States, is not permitted to grant an injunction to stay proceedings in a state court, except as expressly authorized by an act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. 28 U.S.C.A. § 2283. A civil action in the nature of an interpleader, under said section 1335, falls within the exception to the statutory prohibition against injunctions to stay proceedings in a state court; but, in exercising such extraordinary jurisdiction, the federal courts should be careful to avoid granting an injunction in cases not clearly falling within the exception. An abuse of the power of granting injunctions to stay proceedings in a state court should not be tolerated under the guise of giving a liberal construction to a remedial act.

The requisites of the federal remedy of interpleader are that there must be an actual controversy over the same thing, debt, duty, or benefit, between adverse claimants who are citizens of different states; they must have conflicting claims to property of the value of $500 or more which is in the custody of or owing by the one invoking the remedy; and, while it is not necessary that their claims be identical or have a common origin, it is essential that such claims be mutually exclusive with reference to some portion thereof, which means that if one is sustained the other must be denied in whole or in part.3 An averment that the plaintiff is not liable in any respect to any or all of the claimants is not required. The remedy provided by Rule 22 of the Federal Rules of Civil Procedure in no way limits the remedy given by Section 4335 of the new Judicial Code;4 nor is the venue or jurisdiction of actions under the statute affected by the rule.5

So sweeping are some of the words employed in said rule that we must look to its spirit rather than its language in order to ascertain its meaning and avoid absurd results. For instance, the rule begins: “Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.” Literally, this would mean that a plaintiff may join all of his creditors in one action, as indeed he may in bankruptcy and in the distribution of the estate of an insolvent decedent or corporation. The problem in inter-pleader is similar to the administration in admiralty of the limited liability of the owner of a lost vessel. The intention of Rule 22, however, is to provide a remedy against the vexation of double or multiple litigation for a single demand, which the plaintiff is ready and willing to satisfy in favor of the claimant who establishes his right thereto. The remedy is not allowed to avoid the risk of two recoveries if the plaintiff has made himself liable to two claimants for the same demand.6 The *232office of an interpleader is not to protect a party against double or multiple liability but against the expense and vexation of double or multiple litigation in respect to one liability. State of Texas v. State of Florida, 306 U.S. 398, 405-408, 59 S.Ct. 563, 83 L.Ed. 817, 121 A.L.R. 1179; National Fire Ins. Co. v. Sanders, 5 Cir., 38 F.2d 212, 214; Crawford v. Fisher, 1 Hare 436, 441; 4 Pomeroy’s Equity, p. 904 (5th Ed.).

In State of Texas v. State of Florida, supra, there is a succinct statement of the equitable principles of interpleader, which we inherited from England when the Constitution of the United States was adopted. The court was inquiring, sua sponte, into its original jurisdiction, and the question was whether the issue framed by the pleadings was a justiciable case under art. Ill, Sec. 2 of the Constitution. Bills of interpleader and in the nature of inter-pleader were considered, defined, and distinguished. There, as in the case before us, the bill was one in the nature of inter-pleader; there, the court’s jurisdiction was derived solely from the Constitution; here, its jurisdiction is statutory, only the power to receive the jurisdiction having been granted by the Constitution; there the court’s jurisdiction was not affected by said Rule 22 or the Interpleader Act, while here its jurisdiction is modified and controlled by both. That decision is a guide to this one if we measure the jurisdiction of the district court by that of the Supreme Court in interpleader cases in which a state is a party, making due allowance for changes by rules or statutes that are not applicable to the Supreme Court’s original jurisdiction. This guide confirms our previous statement as to the requisites of the remedy in the federal district courts. Let us, however, emphasize the holding that before the Constitution was adopted a familiar basis for the exercise of the equitable remedy of interpleader was the avoidance of the risk of loss from the demands of rival claimants of the same thing. As to strict bills, the court says that the sole ground of equitable relief is “the risk of multiple suits when the liability is single.” The same is held to be true of bills in the nature of interpleader, the ground of jurisdiction of which is to guard against “numerous demands, to only one of which the fund is subject.” On the same theme, 306 U.S. at p. 407, 59 S.Ct. at page 568, 83 L.Ed. 817, 121 A.L.R. 1179, the court points out that there must be danger of two recoveries when “only one party is entitled to succeed.” In the next paragraph, the court holds that its powers should be exercised to prevent the loss which otherwise might result from “the independent prosecution of rival but mutually exclusive claims.” On p. 412, of 306 U.S. 59 S.Ct. 570, still referring to bills in the nature of interpleader, the gist of the relief sought is said to be the avoidance of unnecessary litigation or the risk of loss from “multiple liability when only a single obligation is owing.” From all this it is clear that the claims must be mutually exclusive at least in part, and that to prevent dual or multiple suits the liability must be single. These requisites are not abrogated by any federal rule or statute; if they were, there would be little left of the federal remedy of inter-pleader but the name, and the unbridled right to enjoin proceedings in a state court.

Section 1335 provides that the district courts shall have original jurisdiction in amounts of $500 or more if “two or more adverse claimants, of diverse citizenship as defined in Section 1332 of this title,” are claiming the same thing, debt, or benefit.7 A difference in phraseology between the old and the new codes is worthy of notice, but there is no pertinent difference in meaning between “adverse claimants, citizens of different states,” in Old Title 28 U.S.C.A. § 41(26) (a) (i), and “adverse claimants, of diverse citizenship as defined *233in Section 1332 of this title,” in Sec. 1335(a) (1) of New Title 28. Each phrase connotes jurisdiction of controversies between citizens of different states in a legislative sense, granted by Congress under art. 3, Sec. 2, Par. 1, of the Constitution; and the historic interpretations by the Supreme Court of similar grants; but the peculiarity of the federal statutory remedy of interpleader is such that it is not every kind of diversity of citizenship that suffices to make the controversy one of federal jurisdiction. The judicial power of the United States extends, among other matters, to controversies (a) between a state and citizens of another state; (b) between citizens of different states; and (c) between a state or the citizens thereof and foreign states, citizens, or subjects; but it is only where one of the kinds of diversity of citizenship or nationality so enumerated in the Constitution is granted by Congress that a controversy may on that ground be brought into the courts of the United States. As to the general diversity jurisdiction of the United States district courts, while Chief Justice Marshall regretted ever having made the decision, it is well settled that every plaintiff must be of diverse citizenship from each defendant; in other words, federal jurisdiction on the ground of diversity of citizenship cannot be sustained unless every plaintiff is entitled to sue every defendant.8 The same principle applies to the diverse citizenship of two or more adverse claimants under the federal interpleader statute of 1936, which restricted the jurisdiction to controversies of that particular character. Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85.

Jurisdiction is determined by the situation as to citizenship of the parties at the time of the institution of the suit, regardless of separate or separable controversies. The vigor with which the federal courts have repressed attempts to extend their jurisdiction beyond the limits fixed by statutes should not be relaxed in interpleader proceedings. A federal question is not a ground of federal jurisdiction in inter-pleader actions unless the amount involved exceeds $3,000 exclusive of interest and costs, which it does not in any of these cases. Federal interpleader legislation did not abolish non-statutory federal inter-pleader, but the requisite jurisdictional amount therein was reduced under the statutory remedy.

The effort to put Bradshaw & Hoover, Inc., in the role of an adverse claimant has reacted unfavorably to the appellees for jurisdictional purposes. This alleged and admitted adverse claimant was the local agent of the insurance companies that issued the policies. It is a Mississippi corporation and the alter ego of the plaintiffs, but it was joined as an adverse claimant, and jurisdiction to entertain a bill of inter-pleader is not dependent upon the merits of the claims of the defendants. Hunter v. Federal Life Ins. Co., 8 Cir., 111 F.2d 551. The insured’s receiver in bankruptcy was also made a defendant; he stands in the shoes of the bankrupt, as receiver of the latter’s assets, and his claim conflicts directly with the claim of appellants; it covers the full amount paid into court. He has two chances to recover, one directly and the other indirectly, but both are dependent upon the appellants losing this case. It is the duty of the court, for jurisdictional purposes, to realign these claimants according to their real interests ; 9 and, when we do so, we find citizens of Mississippi, whose interests are identical with Rosenthal Plywood Sales Company, aligned against Pyles and Breland, both of whom are citizens of Mississippi. None of the insurance companies is a Mississippi corporation, but their citizenship is not a jurisdictional element; it is the diverse citizenship of the claimants that determines jurisdiction under the federal interpleader statute.10 Bradshaw & Hoover, Inc., is a claimant for numerous premiums due it, *234none of which has been paid; its interest is adverse to every other claimant, including the United States; Rosenthal Plywood Sales Company, a citizen of Illinois; and two citizens of Mississippi. The interest of the receiver in bankruptcy, a citizen of Mississippi, is with Plywood, a citizen of Illinois, because if the mortgagee wins, the proceeds will be credited on the debt of the bankrupt, who is the mortgagor, thereby releasing pro tanto other encumbered property which constitutes the res in bankruptcy.

In the bill of interpleader all of the nonresident insurance companies are aligned as plaintiffs, and all of the alleged claimants, including the United States, are named as defendant; but this arrangement is immaterial for jurisdictional purposes.11 The test of jurisdiction here is whether the United States district courts, under 28 U.S.C.A. § 41(26), as amended, would have original jurisdiction of a civil action in a controversy over the same res by Pyles and Breland, citizens of Mississippi, against the United States, one citizen of Illinois, and two citizens of Mississippi; and wherein all parties were properly aligned as plaintiffs or defendants in accordance with their real interests in the controversy. The claims of appellants and J. C. Stennett, Receiver, are not only adverse but mutually exclusive; moreover, if Stennett cannot win, he is most interested in having the mortgagees win for the reason above stated.

A glance at the merits confirms this opinion. When the policies were issued, no mortgage clauses were inserted therein. It is said that the mortgagor intended to insure only his equity in the property. Whether or not he had the right to do this is a question of state law. There seems to be no doubt that the insurers are independently liable to the mortgagee ;12 but what about the assignees of the mortgagor, whose policies, when issued, provided that in no event was the insurance to be for more than the interest of the insured in the property? These policies, unaltered, were held by the insured at the time of the fire; though prior thereto, upon application of the creditor, mortgage clauses were issued and mailed to the attorney for the mortgagee. What was the effect of these transactions under the Mississippi law? Was it the same as if different policies had been issued at different times to insure separate interests in the same property, as the appellants claim'; or did the Mississippi statute automatically write these clauses into the policies, as the mortgagee claims? The Mississippi court has not decided: this specific point. Is the federal court bound to decide it in a case where its jurisdiction is questionable?

In their brief the plaintiffs contend that, under the authorities cited by them, the claimants are held to be adverse to each other although all of them do not seek the same amount and do not claim the entire fund; but nevertheless they say, as a matter of fact, that all of the claimants took the position that they were entitled to receive the entire payments under the policy. This was certainly true as to Plywood, Stennett, Receiver, and the appellants ; and undoubtedly Plywood, Bradshaw & Hoover, Inc., Stennett, Receiver, and the United States, were all claiming adversely to appellants. With three out of four of the claimants being citizens of Mississippi when this suit was filed, and one additional claimant not being a citizen of any state or foreign state, only the most arbitrary alignment could arrange all the citizens of Mississippi on one side of the controversy *235and place the lone citizen of Illinois on the other.

Since there are so many claimants for all or nearly all of the proceeds, it may be said that they cannot be aligned or realigned on either of just two sides, that every single claimant is adverse to each and every other claimant, as in a partition suit. If that view be correct, it merely discloses a number of separable controversies within a single suit, which is not wholly between citizens of different states, and of which the United States district courts did not have original jurisdiction under 28 U.S.C.A. § 41(1), as amended, and does not have it under New Title 28 U.S.C.A. § 1332.13 Under those sections, there would be diverse citizenship between Plywood and appellants, but none between appellants and Bradshaw & Hoover, Inc.; none between appellants and J. C. Stennett, Receiver; none between appellants and the United States; none between Bradshaw & Hoover and J. C. Stennett or the United States; and none between Stennett and the United States. A single civil action between these claimants over the benefits under these policies would not lie in the federal court on the ground of diversity of citizenship; and, therefore, an inter-pleader suit was not authorized under the federal interpleader statute. The best that can be said for Plywood from a jurisdictional standpoint is that it had a separable controversy over these benefits with each of the other claimants; but a separable controversy or even a separate and independent controversy with a citizen of another state within a suit between citizens of the same state is not a ground of original federal jurisdiction, and was not when this suit was instituted, although at that time it was a ground of removal jurisdiction, the removal jurisdiction then being broader in this respect than the original jurisdiction of the United States district courts. Misjoinder or multifariousness, in the absence of a fraudulent joinder, does not affect the original jurisdiction of the federal district courts; and the insuperable jurisdictional defect here is that, as between the claimants, the interpleader proceeding is not a controversy wholly between citizens of different states. Neither separable controversies within a suit nor separate and independent claims in the same action, between citizens of different states, have ever been a ground of original jurisdiction of the United States district courts; but this is not true as to the removal jurisdiction, and has not been since the Act of July 27, 1866, 14 Stat. 306.

It may be argued that there should be no realignment of the parties, and that this would leave all the non-resident plaintiffs on one side and all the resident claimants on the other. That argument would be partially good if this were a suit for a declaratory judgment or merely a bill in equity for an injunction to avoid a multiplicity of suits; but even then jurisdiction would be defeated, because the requisite amount of $3,000 would be lacking and the Di Giovanni decision, 296 U.S. 64, 56 S.Ct. 1, 80 L.Ed. 47, would be applicable, which would require a dismissal of the complaint and a dissolution of the injunction. In that case, 296 U.S. p. 71, 56 S.Ct. at page 4, 80 L.Ed. 47, Mr. Justice Stone said: “Lord Hardwick, in laying down the principles which should guide the award of a bill of peace, the progenitor of the modern bill to avoid multiplicity of suits, thought that there was no occasion for the relief where the asserted right could be established by ‘one or two actions at law.’ Lord Tenham *236v. Herbert, 2 Atk. 483. While it need not be said that under no circumstances could •the maintenance of two suits with common issues be so burdensome or inconvenient as to justify equitable relief, see McHenry v. Hazard, 45 N.Y. 580; compare Empire Engineering Corp. v. Mack, 217 N.Y. 85, 95; 111 N.E. 475, it is nevertheless true that the necessity of maintaining two suits involving the same issue seems rarely to have been burdensome enough to impel a plaintiff to seek equitable relief. Equity not infrequently withholds relief which it is accustomed to give where it would be burdensome to the defendant and of little advantage to the plaintiff. * * * Finally it is to be noted that this tenuous ground for the exercise of equity powers is put forward as the sole medium by which suits may be withdrawn from the jurisdiction of the state courts which could not have been removed to or otherwise brought into the federal courts. * * * The power reserved to the states under the Constitution to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity to the judicial sections of the Constitution. Congress, by its legislation, has declared its policy that cases involving less than the jurisdictional amount be left exclusively to the state courts, except that a judgment of the highest court of the state adjudicating a federal right may be reviewed by this Court. * * * Courts of equity, in the exercise of their discretionary powers, should recognize this policy by scrupulous regard for the rightful independence of the state governments and a remedy infringing that independence, which might otherwise be given, should be withheld if sought on slight or inconsequential grounds. * * * We think the threatened injury to respondent is of too slight moment to justify a federal court of equity, in the exercise of its discretion, in according a remedy which would entail denial of a jury trial to the petitioners and withdraw from the jurisdiction of the state courts suits which could not otherwise be brought into the federal courts.”

To recapitulate briefly: When plaintiffs invoke federal jurisdiction on the ground of diversity of citizenship in an ordinary civil action, the diverse citizenship of the parties must be between the plaintiffs and defendants, the amount involved must exceed $3,000 exclusive of interest and costs, and diversity of citizenship must exist between each plaintiff and each defendant so wholly and completely that every plaintiff could sue each defendant in the federal court, regardless of one or more separable controversies within the suit; but when plaintiffs invoke such jurisdiction under the federal interpleader statute, the jurisdictional amount is reduced to money or property of the value of $500 or more, exclusive of interest and costs, and the citizenship of the plaintiffs is not a jurisdictional element but it is the citizenship of the claimants that is determinative of jurisdiction, and the character of the diversity is determined by the requirements of Section 1332 of New Title 28, formerly 28 U.S. C.A. § 41(26) (a) (i). Such requisite diversity of citizenship was wholly lacking in this case at the time the interpleader suit was instituted. It hardly seems necessary to add that in neither instance could federal jurisdiction be conferred by waiver, estoppel or consent of the parties.14

An incident of the equitable remedy of interpleader is the allowance of attorney’s fees and court costs to a wholly disinterested stakeholder who brings money or other property into court; but the reason for this rule ceases, and the practice should cease, except in equity when the plaintiff is wholly disinterested.15 In a recent arti*237ele praising the statutory federal inter-pleader, it is said that the next few years are likely to see an increasing use of the remedy; and it is suggested that an amendment may be necessary to give the United States courts nation-wide power to compel the personal attendance of witnesses, regardless of state boundaries. Adverse claimants may reside thousands of miles apart, and the federal interpleader acts have practically shifted the choice of forum from the insured to the insurer, reducing the requisite amount in controversy to $500. In view of the minimum jurisdictional amount, it is worth considering that it would not take the expense of many witnesses from Maine to California or from Oregon to Florida to consume the res, and that in many of such cases claimants would fare upon the shell, as in the famous tale of the two men who found an oyster, and were disputing over who saw it first, when a lawyer arrived upon the scene and adjusted their differences.

The concurring opinion herein predicates original federal jurisdiction upon diversity of citizenship between the plaintiff insurance companies and the defendants who are called upon to interplead. Since the amount involved as to each insurance company is less than $3,000, there is no independent federal jurisdiction except under the interpleader 'Statute, and this statute predicates federal jurisdiction only upon diversity of citizenship of the claimants. Such jurisdiction is not dependent, ancillary, or auxiliary; but, if it exists, it is independent of any main suit. It cannot be compared to an equitable receivership where the amount involved must exceed $3,000, exclusive of interest and costs, and where there must be a distinct ground of federal jurisdiction, such as diversity of citizenship between the plaintiffs and defendants or a federal question.

The concurring opinion asks: “Is it meant that the adverse claimants may be of citizenship diverse from the plaintiffs, or diverse from each other?” and answers: “I think either diversity will suffice.” 'This answer is directly contrary to both the Act of 1936, which says, “Two or more adverse claimants, citizens of different States,” and New Title 28 U.S.C.A. § 1335, which says, “Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title.” The opinion further says: “There was undoubtedly a controversy between the plaintiff on the one side and all the claimants on the other, and I think the words of the statute and Constitution were satisfied.” We find no applicable words in either statute authorizing the special remedy of interpleader where the citizenship of the plaintiff is a jurisdictional element. Having just stated that undoubtedly there was a constitutional controversy between the plaintiffs on the one side and all claimants on the other, the opinion, in the next sentence but one, says: “The present, case is one of pure interpleader, the plaintiffs acknowledging liability on the policies and paying their face amount into court to be distributed. They have now been discharged from court, and have been paid attorney’s fees.”

The opinion refers to a dependent jurisdiction of the controversy between the claimants, and compares it to the auxiliary jurisdiction of claims in an equity receivership. The statute answers this argument, as follows: “The district courts shall have original jurisdiction * * * if [there are] two or more adverse claimants, of diverse citizenship.” Nothing is said about the citizenship of the plaintiff or stakeholder. It is the diverse citizenship of the claimants and the amount of $500 involved that confer jurisdiction under both acts. The concurring opinion does not mention the amounts in controversy. Diversity of citizenship and the amount in controversy are the only federal jurisdictional elements requisite for the special statutory remedy of interpleader. Where general federal jurisdiction is invoked by the equitable remedy of interpleader, there must be a federal question or diversity of citizenship between the plaintiffs and defendants, and the requisite amount involved must exceed $3,000; in the special statutory remedy, which is the kind we have here, the diversity must be between two adverse claimants and the amount involved may be as low as *238$500. A federal question is not an element of jurisdiction under this special statutory-remedy.

Having confused these remedies with ease and grace, the opinion relies on one requisite element of each, viz: (a) diverse citizenship between plaintiffs and defendants, and (b) diverse citizenship between adverse claimants, disregarding the fact that in (a) the requisite amount is lacking and in (b) the requisite diversity is lacking. The question of the proper alignment of the plaintiffs has been previously discussed in this dissent, and we need not repeat the discussion here. The statements that the United States could intervene if it saw fit, and had formally withdrawn from the case, are misleading. The United States did not intervene in this action; it was named as a defendant that was claiming the fund, and it filed an answer. Judgment against it was rendered, and it appealed, later dismissing the appeal. There was no amendment of the complaint or of the pleadings; the judgment appealed from is still in force; it is against the United States and its officers. The United States is not subject to suit on the ground of diversity of citizenship, and that is the only ground of federal inter-pleader jurisdiction under the Act of 1936 or under Section 1335 of the Judicial Code. In the absence of an amendment, federal jurisdiction is determined as of the date the suit was instituted.

28 U.S.C.A. § 2410(a) of the New Judicial Code does not grant jurisdiction of any matter or controversy to the United States district courts. It merely waives the sovereign immunity of the United States from suit, and consents for it to he named as a party, in certain civil actions in any state or federal court otherwise “having jurisdiction of the subject matter.” The presence of the United States as a party by virtue of this statute neither defeats nor confers jurisdiction in an action of inter-pleader. The statute applies to suits in state as well as federal courts, but if the action is in a state court it may he removed by the United States to the federal court. 28 U.S.C.A. § 1444.

A plain error, which it is the right of this court to notice,16 was the allowance of costs and attorney’s fees to appellees. The allowance was improper if this suit was not one of pure interpleader. The majority opinion says, 178 F.2d 223, 224; “This was a statutory interpleader and not a case of pure interpleader. * * * Since the insurance companies were required to stay in and defend against the suit of Pyles and Breland for a sum in excess of the amount paid into Court they were necessary parties and fulfilled the constitutional purpose as to suits between citizens of different states.” Contrary to this view, the concurring opinion says, 178 F.2d 229: “The present case is one of pure inter-pleader, the plaintiffs acknowledging liability on the policies and paying their face amount into court to he distributed. They have now been discharged from court, and have been paid attorney’s fees. * * * It is argued that this also is a case in the nature of interpleader, because of a suit in a state court for the face of the policies instead of the amount of the loss subsequently fixed without contest. On the face of this complaint the allegations are of a pure interpleader, the plaintiffs being simple stake-holders. They were in fact such, and the decree is expressed to that effect. Attorneys fees and other costs were allowed them on that basis.”

Therefore, we are affirming a judgment awarding costs and attorney’s fees as if appellees were disinterested stakeholders. Shall we sustain jurisdiction on a ground that there is a constitutional- controversy between the insurers and the claimants, as-citizens of different states, and in the same judgment sanction an allowance to the same insurers on the ground that they are disinterested stakeholders? It is true that the successful claimant here waived the point, probably because its attorneys deemed this a true interpleader; but the attorneys should not be censured or their client prejudiced, even if they, were mis*239taken as to the nature of the remedy, since the majority judges themselves are not in accord on the question. It is the claimant that is entitled to justice from this court, which should be consistently administered; and when four out of five of the judges are of the opinion that this is not a true interpleader, but a statutory action in the nature of an interpleader, the judgment appealed from should be modified consistently with the view of the majority on this point.

There has been no lack of astuteness in holding appellants to a waiver of all questions as to the propriety of the interpleader suit, provided the court had jurisdiction; and this court should be equally astute in correcting a plain error, which emerges from the record as a consequence of the opinion of a majority of the court as to the nature of the suit.

. Town of Elgin v. Marshall, 106 U.S. 578, 582, 1 S.Ct. 484, 27 L.Ed. 249; Ex Parte Phoenix Ins. Co., 117 U.S. 369, 6 S.Ct. 772, 29 L.Ed. 923; Clay v. Field, 138 U.S. 479, 11 S.Ct. 419, 34 L.Ed. 1044; Di Giovanni v. Camden Ins. Association, 296 U.S. 64, 67, 56 S.Ct. 1, 80 L.Ed. 47; Thomson v. Gaskill, 315 U.S. 442, 447, 62 S.Ct. 673, 86 L.Ed. 951.

. Although this action was filed on Nov. 28, 1947, references in this opinion will be made to the new code for convenience where no pertinent changes have been made except in arrangement or phraseology. See Reviser’s Notes, page 1837, Section 1335, New Title 28.

. “In using such language, courts are probably groping unsuccessfully toward the sound principle that the claim must be mutually exclusive, i. e., if one claim is right the other must be wrong.” 45 Yale Law Journal, page 981.

. Title 28 U.S.C.A. § 1335.

. Rule 82 of Federal Rules of Civil Procedure. “Therefore, the usual principles of jurisdiction, and venue must be met in relation to any claim that is joined.” Moore’s Federal Rules, as amended, in pamphlet form, p. 45.

. The following is from the brief to the court en banc on behalf of the insurance companies, p. 45: “Should this court here hold that the contract [s] of the plaintiffs with the owner and the mortgagee are of such a nature as possibly to *232permit a double liability, then the Bill of Interpleader should very probably be dismissed.”

. See Reviser’s Notes, Section 1332, pages 1833 and 1834, New Title 28. See also Old Title 28 U.S.C.A. § 41 (26) (a) (i), which gives original jurisdiction in inter-pleader cases if “(1) two or more adverse claimants, citizens of different states, are claiming to be entitled to such money or property, etc.”

. Strawbridge v. Curtis, 3 Cranch 267, 2 L.Ed. 435.

. Peters v. Standard Oil Co., 5 Cir., 174 F.2d 162.

. Treinies v. Sunshine Mining Co., 308 U.S. 66, p. 71, 60 S.Ct. at page 47, 84 L.Ed. 85, wherein the court said, that diversity between claimants was required “in precisely the language of the Constitution.”

. Treinies v. Sunshine Mining Co., supra, wherein the Supreme Court, of its own motion, raised the question of jurisdiction, and held that, under the Inter-pleader Act of 1936, the requirement was only as to the diversity of citizenship of the claimants. The doctrine of Strawbridge v Curtis, supra, was reaffirmed, 308 U.S. at p. 71, 60 S.Ct. 47. Diversity requirements for ordinary federal equity jurisdiction were distinguished, 308 U.S. p. 72, 60 S.Ct. at p. 47, Note 11.

. Bacot v. Phoenix Ins. Co., 96 Miss. 223, 50 So. 729, 25 L.R.A.,N.S., 1226, Ann.Cas.1912B, 262; Scottish Union & National Ins. Co. v. Warren Gee Lumber Co., 118 Miss. 740, 750, 80 So. 9.

. Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 36 L.Ed. 528, was a suit for partition of land, which the court held had been wrongfully removed. Equally in point is Wilson v. Oswego Township, 151 U.S. 56, 14 S.Ct. 259, 38 L.Ed. 70, which was a suit to recover possession of 22 bonds of the value of $500 each that had been deposited in escrow. In Hanrick v. Hanrick, 153 U.S. 192, 14 S.Ct. 835, 837, 38 L.Ed. 685, a suit for the partition of land, after holding that each and all of the defendants contested the rights which the plaintiffs asserted, the court said: “The present case was a suit for partition, to which all the plaintiffs and all the defendants were indispensable parties. Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. .726 [36 L.Ed. 528]; De la Vega v. League, 64 Tex. 205; Stark v. Carroll, 66 Tex. 393, 1 S.W. 188.”

. In M. C. & L. M. Railway v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462, the court held that, in order to confer jurisdiction, the necessary citizenship must appear in the record to have existed at 'the time when the suit was begun; that consent cannot confer jurisdiction; but nevertheless the court has jurisdiction to award judgment for costs on remanding a case. See, also, Chicago, Burlington and Quincy Railroad v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521.

. Groves v. Sentell, 153 U.S. 465, 14 S. Ct. 898, 38 L.Ed. 785; Laws v. New York Life Ins. Co., 5 Cir., 81 F.2d 841, 845; Century Ins. Co. v. First Nat. Bank, 5 Cir., 102 F.2d 726, 729.

. Rule 24-2(b) of the Rules of the United States Court of Appeals for the Fifth Circuit.