lege of being sued in the district of which he is an inhabitant is one, as we have already seen, which may be waived by the defendant, and is waived whenever, being sued, he appears for any purpose other than to object to jurisdiction over his person. It has also been held, under this part of the section, that "inhabitant" is used synonymously with "citizen" and "resident," in the remainder of the section, and that a corporation is equally an inhabitant and citizen only of the state and district in which it has been incorporated. McCormick v. Walthers, 134 U. S. 41, 43, 10 Sup. Ct. 485, 33 L. Ed. 833; Shaw v. Quincy Mining Co., 145 U. S. 445, 12 Sup. Ct. 935, 36 L. Ed. 768; Southern Pacific Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; Galveston, etc., R. R. Co. v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248. An alien, however, is not a citizen of any state. He is not, therefore, within the language of the section above quoted. The latter part of the quotation obviously does not apply to him, because he is not a citizen of any state. The first part does not apply to him, because the word "inhabitant," as used therein, is held to be synonymous with the words "citizen of a state," as used in the latter part. If he were an inhabitant of a district, as those words are used in the first part of the section, he would fall within the rule announced in Ex parte Wisner, and this case would be in the same class as all the cases in which it is held that a citizen of another state cannot be brought into a United States court by removal, when he could not originally have been sued in that court, but, not being included within the meaning of this section, he is not entitled to avail himself of the exemption allowed in Ex parte Wisner. This seems to me to be the only logical deduction from the authorities yet to be reviewed.

In Galveston, etc., R. R. Co. v. Gonzales, supra, an alien sued a corporation defendant in a district of which the defendant was not a citizen or an inhabitant. Upon timely objection it was held that the corporation defendant could not be required to answer in the district of which it was not an inhabitant. It was further held that an alien was not within the language of the latter part of the section above quoted, providing that an action might be brought in the district of the residence of the plaintiff. Logically it follows that an alien is not an inhabitant or a resident of any district. The holding, therefore, of Galveston, etc., R. R. Co. v. Gonzales, does not apply when the parties are reversed, and for a like reason Ex parte Wisner has no application. The exact question is: In what district may an alien be sued, for, if the alien plaintiff might have been sued in this court by the nonresident defendant company, then the action is one which might, in the first instance, have been brought here, and may therefore be removed to this

court.

This question, it seems to me, is answered by the following cases: In re Hohorst, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. Ed. 1211; Barrow Steamship Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964; Wind River Lumber Co. v. Frankfort Marine Ins. Co. (9 C. C. A.) 196 Fed. 340, 116 C. C. A. 160. All these cases explicitly hold that an alien is without the language and purpose of section 51 above quoted, and that he may be sued in any district in which he can be served with

process. This being so, the defendant company might have sued the plaintiff in this court, had it been able to serve him with process in this district. The plaintiff, having brought himself into the district by beginning his action in it, has placed himself in a situation in which process can be served on him. The removal proceedings have the same force and effect as the service of process on him. He does not, therefore, enjoy any privilege of exemption from suit in any other district than that whereof he is an inhabitant. He has no right to claim exemption from being sued in this district. He has no privilege attaching to him, after the removal of this action here, of objecting to the jurisdiction of this court, which belonged to the plaintiff in Ex parte Wisner, supra, and which it has been held, in that and later cases, can be taken from him only by waiver or consent. I am therefore of opinion that this action might have been brought in this court, and may therefore be removed to this court.

Counsel for defendant have cited and rely on In re Tobin, 214 U. S. 506, 29 Sup. Ct. 702, 53 L. Ed. 1061, and In re Nicola, 218 U. S. 668, 31 Sup. Ct. 228, 54 L. Ed. 1203. In the first case, an alien plaintiff sued a defendant corporation in a district of which the defendant was not an inhabitant, and after removal to the United States court a motion to remand was made, which was denied. An application to the Supreme Court of the United States for a writ of mandamus was thereupon made, which was also denied. It is contended that this is a controlling authority, supporting the conclusion to which I have come. On the other hand, the group of judges who have come to the other conclusion insist, with much plausibility, that the writ of mandamus was denied because, as was afterwards held in Ex parte Harding, 219 U. S. 363, 31 Sup. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392, mandamus was not an appropriate remedy, because an order refusing to remand a case may be reviewed by writ of error or appeal.

It is difficult to draw any certain inference as to the ground on which In re Tobin was decided. It is, however, worthy of note that In re Winn, 213 U. S. 458, 29 Sup. Ct. 515, 53 L. Ed. 873, in which a writ of mandamus was granted, ordering a case to be remanded, was decided approximately at the same date as was In re Tobin, and that In re Nicola, supra, was decided later on the authority of In re Tobin. It is, it seems to me, not a strained inference that the doubt as to the propriety of mandamus as a remedy did not arise until after the decision of In re Tobin, and that it is not, therefore, without some weight making in favor of my conclusion.

245 F.-11

LLOYD V. ROYAL UNION MUT. LIFE INS. CO.

(District Court, N. D. Iowa, Cedar Rapids Division. October 3, 1917.)

No. 90.

1. WITNESSES 52(5)-COMPETENCY-HUSBAND AND WIFE.

Code Iowa, 1897, § 4607, providing that neither husband nor wife can be examined in any case as to any communication by the one to the other, does not prevent either testifying to transfer of a claim by one to the other.

2. INSURANCE 585(3)-LIFE INSURANCE-BENEFICIARY-Divorce.

Right of beneficiary under life policy on her husband's life is not defeated by divorce.

3. INSURANCE 585(1)-LIFE INSURANCE-BENEFICIARY-VESTED INTEREST. Beneficiary under a policy of a company organized under the life insurance laws, as distinguished from a fraternal or mutual benefit association, takes a vested interest, which cannot be impaired by act of assured and the company without her assent.

4. INSURANCE 587-LIFE INSURANCE-ACTION-DEFENSE-DUPLICATE POLICY WITH NEW BENEFICIARY.

It is no defense to beneficiary's action on life policy, providing that under certain conditions insured may designate a new beneficiary, by filing written request, "together with this policy, such change to take effect on the indorsement thereof on the policy by the company," that, while the policy was in the named beneficiary's hands, it accepted from assured his affidavit that the policy was lost, and his indemnity agreement, and issued in lieu of the policy a duplicate, on which it indorsed the name of another as beneficiary.

At Law. Action by Anzonetta M. Lloyd against the Royal Union Mutual Life Insurance Company. Judgment for plaintiff.

The plaintiff, Anzonetta M. Lloyd, a citizen of Illinois, brings this suit to recover from the defendant, Royal Union Mutual Life Insurance Company, an Iowa corporation, the sum of $5,000 and interest thereon, alleged to be due her upon a policy of insurance issued by the defendant March 4, 1912, upon the life of Edwin A. R. Lloyd, who was then the plaintiff's husband, in which plaintiff is named as the beneficiary entitled to receive the amount of such insurance upon the death of said Lloyd, a copy of which policy is attached to the petition as an exhibit. The plaintiff also alleges that, about March 18, 1912, Lloyd delivered to her said policy of insurance under an oral agreement with her that she should pay the annual premiums thereon from her own sep arate funds, during the lifetime of said Lloyd and receive the amount of such insurance upon his death; that thereafter she furnished the money to Lloyd from her own funds to pay such premiums until his death, which occurred December 25, 1915; that she has made due proofs to the defendant of such death, and demanded of it the amount due upon such policy, which it has refused to pay, and she asks judgment therefor.

The defendant's answer is in two counts or divisions, in the first of which it admits the issuance of the policy payable to the plaintiff as beneficiary, the payment of the annual premiums thereon, the death of Lloyd, and that said policy was in full force at the time of his death; and further alleges that it has neither knowledge nor information sufficient to form a belief as to whether or not the plaintiff paid the annual premiums upon said policy, or that said Lloyd ever transferred or delivered said policy to the plaintiff, and denies that plaintiff is entitled to recover either as beneficiary or as assignee or owner of said policy.

In the second division of its answer the defendant alleges as a further and equitable defense: That on or about February 4, 1915, and during the lifetime

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

of the insured, he filed with the defendant company his affidavit, stating that said policy had been lost and requesting the issuance of a duplicate thereof. That, relying upon the truth of said affidavit, the defendant did issue and deliver to said Edwin A. R. Lloyd a duplicate of said policy, and thereafter at his request and the presentation of said duplicate to its home office it did on February 8, 1915, indorse such duplicate as follows: "In accordance with the application of the insured the beneficiary under this policy is hereby changed from Anzonetta Lloyd, wife, to Della L. Kirk, mother of the insured. [Signed] Royal Union Mutual Life Insurance Company, Snyder A. Foster, Secretary." That thereby the said beneficiary was changed, and said Della L. Kirk became the beneficiary under said policy. That shortly after the death of the insured said Della L. Kirk filed written proofs of his death claiming to be the beneficiary under said policy, and thereafter on March 29, 1916, commenced suit in the district court of Cerro Gordo county upon said duplicate policy against this defendant; and such proceedings were had in said cause that on November —, 1916, judgment was rendered in favor of said Della L. Kirk against this defendant for full amount thereof and costs. It further alleges that no written assignment or transfer of said policy was ever made by said Lloyd to the plaintiff, as required by the terms of said policy, and it prays that said alleged assignment and transfer of said policy to plaintiff be canceled and held for naught, that said policy in the hands of plaintiff be surrendered to the defendant or to the clerk of this court for the defendant, that plaintiff's petition be dismissed at her costs, and that defendant have judgment for such and further relief as it may be entitled to.

The policy contains the following clauses: "If the right of revocation has been reserved, or in case of the death of the designated beneficiary, the insured may at any time while the policy is in force, and subject to any existing assignment of the policy, designate a new beneficiary (with or without the right of revocation) by filing written request therefor at the home office, together with this policy; such change to take effect on the indorsement thereof on the policy by the company." "No assignment hereof shall be binding upon the company unless a duplicate original thereof shall have been filed at the home office. Assignment blanks will be furnished upon application. Proof of interest may be required when the policy becomes payable, or when any settlement thereof or thereunder is demanded. The company does not guarantee the validity of any assignment."

For reply to the second division of defendant's answer the plaintiff says: That at about the time of the issuance of the policy it was orally agreed be. tween the insured, Edwin A. R. Lloyd, and the plaintiff, that, in consideration of the plaintiff paying said insured the premiums to become due on said policy, the said policy should be and remain the property of the plaintiff, and plaintiff entitled to the proceeds thereof upon his death; that said policy was by said insured delivered to the plaintiff in pursuance of said oral agreement, and has ever since remained in her possession up to the time of his death; that, relying on said agreement, she paid to the insured the annual premiums on said policy as they became due, the total sum so paid being about $600; that plaintiff had no knowledge of the alleged application for the issuance of a duplicate policy, or the issuance of one, and had never consented to the making or indorsing of said alleged change of beneficiary upon the policy until after the death of Lloyd; that said original policy was never at any time lost, but was at all times up to the time of the death of said insured in the possession of this plaintiff as owner thereof. Plaintiff further alleges that defendant received from said insured and now holds an indemnity agreement protecting defendant from loss by reason of issuing said duplicate policy; that the estate of said insured is solvent, and said indemnity agreement affords the defendant full protection against loss by reason of any judgment in favor of Della L. Kirk, as alleged in defendant's said answer. Plaintiff further avers that said insured had, as against this plaintiff, no right to change, and did not in fact change in accordance with the provisions of said policy, the beneficiary originally named therein, and said attempted change is void and of no effect as against this plaintiff.

The parties thereupon stipulated in writing that the cause should be transferred to the equity side of the court and tried to the court without a jury.

Neither party has challenged the sufficiency of the pleading, but the defendant, before answering, filed a motion asking that the plaintiff be required to bring in as a party to the suit the said Della L. Kirk, that her rights in or to said policy might be determined, alleging that the insured, prior to his death, designated her as beneficiary in the policy instead of the plaintiff; but such motion was never called to the attention of the court prior to the hearing, and was never ruled upon.

Leslie H. Whipp, of Chicago, Ill., and Crosby & Fordyce, of Cedar Rapids, Iowa, for plaintiff.

Dawley, Jordan & Dawley, of Cedar Rapids, Iowa, for defendant.

REED, District Judge (after stating the facts as above). But two questions are presented for determination:

First. Did the insured, shortly after the policy was issued, deliver the same to the plaintiff upon an oral agreement with her that she was to pay from her own funds the annual premiums thereon as they matured, and receive the amount of the insurance upon his death? And

Second. Did the insured prior to his death change the beneficiary named originally in the policy from his wife, the plaintiff, to his mother, Mrs. Kirk, in accordance with the terms prescribed in the policy?

[1] As to the first of these questions, it is the contention of the defendant (1) that the alleged oral assignment of the policy is not proven; or (2) if proven, that the policy under its terms can only be assigned in writing. The first of these contentions is that plaintiff, under section 4607, Code of Iowa (1897), is not a competent witness. That section provides:

"Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal in testimony any such communication made while the marriage subsisted."

This section does not forbid either the husband or wife from testifying to the transfer of a claim by one to the other. Hanks v. Van Garder, 59 Iowa, 179, 13 N. W. 103; Sexton v. Sexton, 129 Iowa, 487, 491, 492, 105 N. W. 314, 2 L. R. A. (N. S.) 708; Wigmore on Evidence, § 2226, and note.

(2) But the policy does not forbid its assignment. It only provides that no assignment thereof shall be binding upon the company unless a duplicate thereof shall have been filed at the home office. Section 3046 of the Iowa Code (1897) provides:

"When by the terms of an instrument its assignment is prohibited, an assignment thereof shall nevertheless be valid, but the maker may avail himself of any defense or counterclaim against the assignee which he may have against any assignor thereof before notice of such assignment is given to him in writing."

Under this section an assignment of a policy of insurance, by the terms of which an assignment is expressly prohibited, is permitted, and the assignee may sue thereon in his own name. Mershon v. National Ins. Co., 34 Iowa, 87; Farmers' & Traders' Bank v. Johnson, 118 Iowa, 282, 286, 91 N. W. 1074.

[2, 3] As to the sufficiency of the testimony to establish the oral transfer of the policy, I find as a fact from the evidence that the policy,