Boice v. Boice, 135 F.2d 919 (3d Cir. 1943)

Charles S. Barrett, Jr., of Newark, N. J. (Lum, Fairlie & Wachenfeld, of Newark, N. J., on the brief), for appellant.

Milton M. Unger and John J. Francis, both of Newark, N. J. (Foley & Francis, and Gerald T. Foley, all of Newark, N. J., *920 on the brief), for defendants First Nat. Bank of Palm Beach and Florida Bank & Trust Co.

Before MARIS, JONES, and GOODRICH, Circuit Judges.

PER CURIAM.

The order of the district court dismissing the plaintiff's complaint which seeks an interpleader between the defendants must be affirmed for the reasons well stated in the opinion of Judge Fake, D.C., 48 F. Supp. 183. We think also that the dismissal was right because of an absence of diversity of citizenship between the plaintiff and one of the defendants, Edith Gibby Boice. This is not a case of strict interpleader in which the plaintiff appears as a mere stakeholder without any interest in a controversy between defendants whose diversity of citizenship satisfies the statute. Treines v. Sunshine Mining Co., 308 U.S. 66, 60 S. Ct. 44, 84 L. Ed. 85. On the contrary this is a case of a bill in the nature of a bill of interpleader in which the plaintiff has an active controversy with respect to the subject matter of the suit with one of the defendants, Mrs. Boice. Since these parties are both citizens of New Jersey the district court was without jurisdiction to entertain the suit.

The order is affirmed.