New York Life Ins. v. Dorsett , 152 La. 67 ( 1922 )

LECHE, J.

[1] In this proceeding, the plaintiff, recognizing its liability on two life insurance policies which it had issued on the life of J. Leer Lacombe, the ownership of which policies was in contest between the succession of Lacombe and the American Bank & Trust Company of Eunice, deposited the proceeds of said policies in the registry of the district court for the parish of St. Landry, cited the claimants of said policies to litigate their rights therein, and prayed “that the deposit of said fund be accepted and declarecl to be a complete discharge of its liability in the premises.” In other words, the plaintiff admits its liability for the value of the policies, wishes to be discharged from such liability without incurring costs and penalties, to all of which it is entitled in law and equity, but, not knowing who is rightfully entitled to receive the proceeds of said policies, it prays the court to accept and hold such proceeds until the rights of the several claimants thereto have been finally adjudicated, and then that it pay and turn same over into the hands of the claimant who is the real and legal owner thereof. The proceeding is therefore a conbursus, pure and simple, often resorted to in our practice, and the only logical method of settling the conflicting legal claims of persons who assert rights to a common fund or to the same property.

[2] The ownership of the policies of insurance, and therefore of the proceeds thereof, has this day beep determined and decided in the ease of Mrs. Sallie Dorsett, Administratrix, v. L. E. Thomas, State Bank Examiner et al., No. 24751 (La.) 92 South. 734,¹ of the docket of this court, and by that decision the issue of ownership of said policies passed out of this case, and the plaintiff is entitled to abide by that decision. ■

Plaintiff in the prayer of its petition prays further for costs and for attorney’s fees. The judgment of the district court granted all the relief prayed for by pláintiff, and allowed it $500, out of the fund deposited, as attorney’s fees. This allowance is properly resisted and contested by defendants and appellants. Plaintiff and appellee "made no appearance in this court, and we know of no principle in law or justice justifying the award of attorney’s fees to the holder of a fund, who deposits same in court in order to provoke a concursus.

The judgment appealed from is amended by striking out the award of $500 to plaintiff, as attorney’s fees, and as thus amended it is affirmed; appellee to pay costs of appeal.

1 Ante, p. 60.