McCONNELL v. PROVIDENT SAVINGS LIFE ASSUR. SOC. OF NEW YORK, 69 F. 113

TAFT, Circuit Judge, after stating the case, delivered the opinion of the court. A motion is made by the appellee to dismiss this appeal on the ground that the proceeding below was a proceeding at law, which can only be reviewed by a writ of error in this court. An examination of the record satisfies us that the cause was heard upon the equity side of the court. The action was begun by bill in the state chancery court, and removed to the circuit court of the United States. The forms of pleading were those of the chancery jurisdiction.

It is true that there is a stipulation waiving a jury, and to that extent the proceedings were inconsistent with equity procedure. But the bill throughout was tren tod as a bill in chancery, the answer was in the form of an answer in chancery, the formal replication required in chancery was expressly waived, and the action of the court was expressed in a decree by which complainant’s bill wae dismissed. There is nothing to show positively and conclusively that the cause was docketed on the equity side of the court, but we think this is llie necessary inference fro»: tin; form of the pleadings and the entries.

This being so, the only mode by which the action of the court below could be reviewed was by an appeal. The cause oí action of the appellant and complainant below vas at law. It was a simple suit to recover the amount of the policy upon the happening oí the condition upon which by the terms oiJ the policy it was due. It had not a single equitable feature in it, and there'was no relief needed, or prayed for which nemrii sited a resort to> the court of equity.

The jurisdiction of the Tennessee chancery court rested only upon a Tennessee statute enlarging the jurisdiction of courts of equity, and not applicable to courts of the United States. In such a case we think that a United States court of equity has no jurisdiction whatever, and that it is the duty of this court to reverse the decree of the court below and remand the case, with instructions to redocket the cause as one at law, and to require the parties to re-frame their pleadings to conform to procedure at law. In Reynolds v. Watkins, 9 C. C.

A. 273, 60 Fed. 824, we had occasion to consider the proper course for this court to pursue iu regard to appealed causes which had been heard in equity below when they should have been heard at law. Tn that case Judge Lurton, delivering the opinion of the court, said: “No question of jurisdiction was raised in the circuit court, but it is now, for the first lime, insisted that complainants luid a plain and adequate remedy at law, and iliat, therefore, a court of equity will not entertain this suit. All objection that the remedy at law was plain and adequate should be taken at the earliest opportunity.

Yet neither consent nor negligence will confer jurisdiction in equity where none really exists, and the court may at any stage of a cause entertain such objection, or dismiss a bill mero moiu.

Yet there are cases where if the objection of want of jurisdiction because of an adequate remedy at law be not taken in the circuit court, and be for the first time presented upon appeal, this court will not feel itself obliged to entertain an objection coming so late, especially if the subject-matter of the suit is of a class over which a court of chancery lias jurisdiction, and it is competent for the court to grant the relief sought. Reynes v. Dumont, 130 U. S. 353, 9 Sup. Ct. 486; Kilboum v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594.

Looking to the whole of the original bill, including the transcripts of two suits in equity involving and affecting the tille and interest of complainants, and filed, as exhibits to the bill, we are of opinion that the interest of the complainants was so essentially of an equitable character as to constitute a controversy over which a court of equity may well assume jurisdiction.” In Reynes v. Dumont, 130 U. S. 355, 395, 9 Sup. Ct. 486, the chief justice, speaking for the supreme court, said.: “It was held in Lewis v.

Cocks, 23 Wall, 466, that if the court, upon looking at the proofs, found none at all of the matters which would make a proper case for equity, it would be the duty of the court to recognize the fact and give it effect, 1 hough net raised by the pleadings nor suggested by counsel. To the same effect is Oelricks v. Spain. 15 Wall. 211.

The doctrine of these and similar cases is that the court, for its own protection, may prevent matters purely cognizable at law from being drawn into chancery at the pleasure of the parties interested; but it by no means follows, where the subject-matter belongs to the class over which a court of equity has jurisdiction, and the objection that the complainant has an adequate remedy at law is not made until the hearing in the aiipellate tribunal, that the latter can exercise no discretion in the disposition of such objection.” We think that the case at bar is not of a class of suits usually cognizable in a court of equity, that there is nothing at all in it which makes it a proper case for chancery jurisdiction, and that the principle laid down in Lewis v.

Cocks, 23 Wall. 466, is applicable. Both parties seem to have elected to treat the cause as one in equity, and not to have objected to proceeding on the equity side of the court. Owing to this action, the defeated party sought review in this court by appeal as from a decree in equity, and it is now for the first time objected by the successful party below, after the time has elapsed within which a writ of error can be brought, that the cause was not an equity cause, and that the proper mode of review was by writ of error.

Under such circumstances, we think the decree of the court below should be reversed for want of jurisdiction, with instructions to remand the cause to the law docket, and to re-frame the pleadings accordingly. The costs of the case in this court and in the court below will be divided.