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Argument for Petitioner.

bills to cancel when and as the bills were filed. Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 174, 176; Story, Eq. Juris. (13th ed.), § 995; 2 Black, Rescission & Cancellation, $ 655, p. 1497; 9 C. J. 1160.

When a court of equity properly acquires jurisdiction it will retain it until complete justice is done between the parties. McGowan v. Parish, 237 U. S. 285, 296; Alexander v. Hillman, 296 U. S. 222, 242; 21 C. J. 134, 117.

Whether an equity court has jurisdiction depends on the facts and circumstances existing at the time the bill is filed and not on those that may subsequently develop. A remedy at law cannot be adequate if its adequacy depends upon the will of the opposing party. Boyce's Executors v. Grundy, 3 Pet. 210, 215; Sullivan v. Portland R. Co., 94 U. S. 806, 811; Dawson v. Kentucky Distilleries Co., 255 U. S. 288, 296; Busch v. Jones, 184 U.S. 598, 600; Clark v. Wooster, 119 U. S. 322, 325; Bank of Kentucky v. Stone, 88 Fed. 383, 391.

The case is controlled by the rule announced by this Court in Dawson v. Kentucky Distilleries Co., 255 U. S. 288, 296, that equitable jurisdiction is not "lost because since the filing of the bill an adequate legal remedy may have become available." See also Busch v. Jones, 184 U.S. 598, 600.

The foregoing points have been the subject of discussion and decision in policy cancellation cases, similar to the ones at bar, in other Circuit Courts of Appeals, and such decisions declare the principles above stated. This decision of the Circuit Court of Appeals for the Tenth Circuit is in direct conflict with decisions in other Circuits in like cases. (Fourth Circuit) Jefferson Standard Life Ins. Co. v. Keeton, 292 Fed. 53, 54–56; Jones v. Reliance Life Ins. Co., 11 F. (2d) 69, 70; Brown v. Pacific Mutual Life Ins. Co., 62 F. (2d) 711, 712; New York

Argument for Petitioner.

300 U.S.

Life Ins. Co. v. Truesdale, 79 F. (2d) 481, 485; Pacific Mutual Life Ins. Co. v. Parker, 71 F. (2d) 872, 874. (Fifth Circuit) Jefferson Standard Life Ins. Co. v. McIntyre, 294 Fed. 886, 888. (Sixth Circuit) New York Life Ins. Co. v. Seymour, 45 F. (2d) 47, 48, 49; Rose v. Mutual Life Ins. Co., 19 F. (2d) 280, 282. (Seventh Circuit) Harnischfeger Sales Corp. v. National Life Ins. Co., 72 F. (2d) 921, 922, 923. (Eighth Circuit) Peake v. Lincoln National Life Ins. Co., 15 F. (2d) 303, 305, 306; Lincoln National Life Ins. Co. v. Hammer, 41 F. (20) 12, 17. (Ninth Circuit) Massachusetts Bonding & Ins. Co. v. Anderegg, 83 F. (2d) 622, 624, cert. den., 299 U. S. 567. It appears also to be in conflict with Enelow v. New York Life Ins. Co., 293 U. S. 379, 384, upon which it professes to be based.

Section 384, 28 U. S. C., providing that no equity suit shall be maintained if plaintiff has an adequate remedy at law, may be waived by defendant, and was waived in these cases both by pleading to the merits only, by stipulating in writing for trial of the equity suits in advance of the law actions, and by proceeding to trial without objecting to equity jurisdiction. American Mills Co. v. American Surety Co., 260 U. S. 360, 363; Duignan v. United States, 274 U. S. 195, 199; Twist v. Prairie Oil Co., 274 U. S. 684, 689–691; Perego v. Dodge, 163 U. S. 160,164; Reynes v. Dumont, 130 U. S. 354, 395; Kilbourn v.

underland, 130 U. S. 505, 514; Tyler v. Savage, 143 U. S. 79, 96–97; Southern Pacific R. Co. v. United States, 200 U. S. 341, 349; Brown v. Lake Superior Iron Co., 134 U. S. 530, 536; Singer Sewing Machine Co. v. Benedict, 229 U. S. 481, 484; Lyons Milling Co. v. Goffe & Carkener, 46 F. (20) 241, 245; Sanders v. Riverside, 118 Fed. 720, 722.

The decrees cancelling the policies were justified and should be affirmed. New York Life Ins. Co. v. Griffith, 35 F. (2d) 945, 946.

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Argument for Respondents.

Mr. Charles G. Yankey for respondents.

The claims were pure legal claims and the defenses legal defenses. Enelow v. New York Life Ins. Co., 293 U. S. 379; Adamos v. New York Life Ins. Co., 293 U. S. 386. The beneficiaries were guaranteed a right to trial by jury. Const., Seventh Amendment; Judiciary Act, c. 20, § 16, 1 Stat. 82; Jud. Code, § 267; 28 U. S. C. 384.

The right of the court of equity to intercede was entirely dependent upon the possible or threatened loss of complainant's defense, if a controversy was not instituted within the period allowed. Necessarily, the right was dependent entirely upon the probability of losing it. See Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, and cases cited in Enelow v. New York Life Ins. Co., 293 U. S. 379, 384.

Under the allegations, we have merely an abstract question; at most a mere apprehension or fear of a remote injury. No allegations are made or facts stated to justify even an inference that the beneficiaries would not commence actions within the period,

This case is of that type of equity jurisdiction which is to prevent injury as distinguished from the types which determine controversies and adjudicate rights dependent upon facts which have occurred. It is a fixed principle that the occurrence or continuance of the injury must be probable and imminent. Connecticut v. Massachusetts, 282 U. S. 660; New York v. Illinois, 274 U. S. 488; New Jersey v. Sargent, 269 U. S. 328; Texas v. Interstate Commerce Comm'n, 258 U. S. 158; Marye v. Parsons, 114 U. S. 325; Foster v. Mansfield C. & L. M. R. Co., 146 U. S. 88; Stearns v. Wood, 236 U. S. 75.

Petitioner, having a plain, adequate, and complete remedy at law, was not entitled to a stay in equity. Smith v. American National Bank, 89 Fed. 832, 838; Griesa v. Mutual Life Ins. Co., 169 Fed. 509, cert. den., 215 U. S. 600.

Argument for Respondents.

300 U.S.

The Insurance Company has submitted to the jurisdiction of the court in the law actions by filing motions to stay proceedings. Moreover, the following wellconsidered cases hold that the legal remedy of the Insurance Company became plain, adequate and complete notwithstanding the pendency of the equity suits, upon the filing of the law actions within the contest period by the respondents. Great Southern Life Ins. Co. v.

. Burwell, 12 F. (2d) 244, cert. den., 271 U. S. 683; New York Life Ins. Co. v. McCarthy, 22 F. (20) 241; New York Life Ins. Co. v. Thompson, 78 F. (2d) 946; Rohrbach v. Mutual Life Ins. Co., 82 F. (2d) 291. And see Griesa v. Mutual Life Ins. Co., 169 Fed. 509, cert. den., 215 U. S. 600; Enelow v. New York Life Ins. Co., 293 U. S. 379; Adamos v. New York Life Ins. Co., 293 U. S. 386.

The motions to dismiss were considered as leveled at both the original and the supplemental bills herein, since the application for injunction against the prosecution of the law actions, which came on for hearing at the same time, is found only in the supplemental bills. The supplemental bills recite that the law actions have been filed by the respondents. Therefore, the pleadings of the petitioner show upon their face that petitioner had a plain, adequate and complete remedy at law within the contestable period, at the time the motions to dismiss were considered. Under such circumstances it is held that the actions to cancel the policies for fraud will not be entertained in a court of equity. Cable v. United States Life Ins. Co., 191 U. S. 288; Phoenix Mutual Life Ins. Co. v. Bailey, 13 Wall. 616; Di Giovanni v. Camden Fire Ins. Co., 296 U. S. 64; Nichols v. Pacific Mutual Life Ins. Co., 84 F. (28) 896; Griesa v. Mutual Life Ins. Co., 169 Fed. 509, cert. den., 215 U. S. 600; Riggs v. Union Life Ins. Co., 129 Fed. 207;

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Argument for Respondents.

Rohrbach v. Mutual Life Ins. Co., 82 F. (2d) 291; New York Life Ins. Co. v. Thompson, 78 F. (2d) 946.

The records show the actions at law upon the policies were at issue two months and twenty-three days before the trial of these equity suits in the same court, and four months and thirteen days before the expiration of the contest period. The Insurance Company had thus instituted a contest of the policies in actions at law. A dismissal of the law actions thereafter would not deprive the company of the benefit of that contest. Cable v. United States Life Ins. Co., 191 U. S. 288, 309; New York Life Ins. Co. v. Miller, 73 F. (2d) 350; New York Life Ins. Co. v. Hurt, 35 F. (2d) 92, 96; Thomas v. Life Insurance Co., 135 Kan. 381.

Moreover, the Insurance Company after the pendency of the law action could plead as a counterclaim or crosspetition the very same cause of action which is set out in the bill of complaint to cancel the policy for fraud. By the Kansas Code of Procedure, the dismissal of an action by the plaintiff does not dismiss any counterclaim pleaded by the defendant. See Northern Life Ins. Co. v. Walker, 123 Wash. 203.

Respondents did not waive the right to trial by jury.

Jurisdiction in equity upon the ground that the complainant is without an adequate remedy at law, cannot be conferred by consent or waiver. Jud. Code, § 267; 28. U. S. C. 384.

Whenever at any stage it appears that there is a plain, adequate and complete remedy at law, the court must dismiss the suit and leave the parties to their legal remedy, even though the point is not raised by the pleadings nor suggested by counsel. Hipp v. Babin, 19 How. 279; Oelrichs v. Williams, 15 Wall. 211; Lewis v. Cocks, 23 Wall. 466; Boise Water Co. v. Boise City, 213 U. S. 276; Phoenix Life Ins. Co. v. Bailey, 14 Wall. 616; Singer Sewing Machine Co. v. Benedict, 229 U. S. 481.