     Case: 18-10517   Document: 00515126384   Page: 1   Date Filed: 09/20/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                               No. 18-10517                 September 20, 2019
                                                                 Lyle W. Cayce
DIANE WEAVER, formerly known as Diane Hickey,                         Clerk


             Plaintiff-Counter Defendant–Appellant

v.

METROPOLITAN LIFE INSURANCE COMPANY,

             Defendant-Counter Claimant–Appellee

UNKNOWN PAYEE,

             Defendant–Appellee


METROPOLITAN TOWER LIFE INSURANCE COMPANY, formerly known
as Metropolitan Insurance and Annuity Company,

             Counter Claimant–Appellee

v.

JAMES M. PERRY,

             Counter Defendant–Appellee


                Appeal from the United States District Court
                     for the Northern District of Texas
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                                 No. 18-10517
Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      This contract-interpretation case under Texas law concerns Diane
Weaver’s then-husband Larry Hickey, who suffered a diving accident in 1989.
The couple received a structured settlement from the premises owner and its
insurers. The couple later divorced, and Larry passed away in 2014. The issue
is whether the settlement agreements gave Larry the right to replace Weaver
as beneficiary of an annuity.
      Before deciding the merits, we must decide if the district court had
diversity jurisdiction. Weaver initially sued Metropolitan Life Insurance
Company and the “Unknown Payee” receiving the annuity payments. Met Life
removed the case, then interpleaded James Perry—Larry’s brother and the
previously unknown payee. Weaver and Perry are both Texans. But, under the
diversity and removal statues, the parties were diverse throughout this action.
And the district court thus had jurisdiction.
      Turning to the merits, summary judgment was correctly granted based
on the settlement agreements. These documents, read as a cohesive,
contextual, harmonious whole, grant Larry the unilateral right to change the
beneficiary. We decline to rewrite the agreements under the guise of
interpreting them.
      We AFFIRM the judgment.
                                       I
      In 1989, Larry suffered a diving accident that left him quadriplegic.
Weaver and Larry sued the premises owner for negligence. Larry sought
damages for pain, disfigurement, lost income, and medical expenses. Weaver
sought damages for loss of consortium, mental pain, and loss of monetary
contributions. They obtained a settlement and dismissed the case. Four
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                                 No. 18-10517
documents comprise the settlement—the Release, the Settlement Agreement,
the Assignment, and the Annuity. Their contents overlap somewhat.
      In the Release, Weaver and Larry released their claims in exchange for
$850,000. Weaver, Larry, and their attorney were to receive $300,000
immediately, and Met Life was to receive $550,000 from another insurer,
Metro Tower, to fund an annuity.
      In the Settlement Agreement, Weaver and Larry agreed to dismiss the
case in exchange for those payments. The premises owner’s insurer, Wausau
Lloyds Insurance Companies, agreed to give Larry monthly payments for the
longer of either his lifetime or 30 years. The Settlement Agreement addresses
beneficiaries and changes:
      If Larry Hickey dies before receiving all payments set forth in this
      paragraph, such payments shall be made as due to Diane Hickey
      [Weaver], his wife, if living, otherwise to the Estate of Larry
      Hickey, upon proof of death being furnished to Wausau Lloyds
      Insurance Company, or its assignee. Claimant reserves the right
      to request to change the beneficiary of future periodic payments.
The Settlement Agreement does not define “Claimant.” It goes on to provide
that Wausau Lloyds would assign its duty to make payments to Metropolitan
Insurance and Annuity Company, later renamed Metropolitan Tower Life
Insurance Company. Metropolitan Tower would fund the periodic payments by
purchasing an annuity contract from Met Life.
      In the Assignment, Wausau Lloyds assigned its duty to make payments
to Metropolitan Tower. The Assignment identifies Larry as the “Claimant” in
its parties list. Its addendum provides who to pay: “Payee: Larry Hickey, if
living, otherwise to Diane Hickey, his wife. If Diane Hickey is not living, then
payments shall be made to the Estate of Larry Hickey.”
      In the Annuity, Met Life agreed to make payments. The Annuity
provides that the “Measuring Life” is Larry; “Owner” is Metropolitan Tower;
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                                  No. 18-10517
and “Beneficiary” is “Diane Hickey, wife if living; otherwise the Estate of Larry
Hickey.” If the Measuring Life died before the 30 years expired, Met Life
agreed to make payments to the beneficiary.
      In 1999, Weaver and Larry divorced. Among the divorce decree’s
property distributions, Larry received “[a]ny property not otherwise awarded
herein” that was in his possession or sole control.
      In 2002, unbeknownst to Weaver, Larry requested to change the
annuity’s beneficiary from her to his brother Perry. In 2014, Larry died.
Weaver, believing she was now entitled to the annuity payments, demanded
payment from Wausau Lloyds and Met Life. Met Life responded that it could
not direct payments to Weaver because the beneficiary had been changed.
      Weaver initially sued Met Life and “Unknown Payee” in Texas state
court. She asserted one cause of action: breach of contract against “Defendant.”
As used in the petition, “Defendant” meant Met Life. In a factual allegation,
not a count or claim, she alleged that Unknown Payee was “believed to be a
resident of the State of Texas who is currently receiving the periodic payments
the subject of this suit.” She did not assert a cause of action against Unknown
Payee.
      Met Life removed the case to federal court. It alleged diversity
jurisdiction because Weaver is a citizen of Texas and Met Life is a citizen of
New York. It asserted that Unknown Payee was a defendant sued under a
fictitious name, who must be disregarded for diversity purposes under 28
U.S.C. § 1441(b)(1). Alternatively, it alleged that diversity jurisdiction existed
because Weaver’s petition asserted no claims against Unknown Payee.
      The day after Met Life removed the case, Met Life and Metropolitan
Tower (the Met Life parties) filed an amended answer and counterclaim. The
counterclaim was an interpleader action against Weaver and Perry. This
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                                       No. 18-10517
pleading was both Metropolitan Tower’s and Perry’s first appearance in the
case. It alleged that diversity jurisdiction remained proper because the Met
Life parties, citizens of New York and Delaware, were diverse from Weaver
and Perry, citizens of Texas.
       After learning Perry’s identity from the answer and counterclaim,
Weaver moved to amend her complaint to assert a claim against Perry for
money had and received. She also moved to remand the case to state court
because Perry’s joinder destroyed diversity. The district court granted leave to
amend but denied the motion to remand. It held that diversity jurisdiction over
the interpleader action, combined with supplemental jurisdiction over the
money-had-and-received claim, made remand unnecessary.
       The district court later granted summary judgment to the Met Life
parties and Perry. It denied Weaver’s motion for summary judgment. Weaver
appealed the order denying remand, the summary judgment orders, and the
final judgment.
                                              II
       The district court held it had jurisdiction based on diversity; Weaver
challenges that decision on appeal.
       We “review the denial of a motion to remand de novo.” 1 Similarly, we
“review[] de novo an order granting summary judgment, ‘applying the same
standard as the district court.’ ” 2 Summary judgment is proper if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 3



       1  Miller v. Diamond Shamrock Co., 275 F.3d 414, 417 (5th Cir. 2001).
       2  SCA Promotions, Inc. v. Yahoo!, Inc., 868 F.3d 378, 381 (5th Cir. 2017) (quoting Vela
v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001)).
        3 FED. R. CIV. P. 56(a).

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                                       No. 18-10517
                                             III
       We view the district court’s jurisdiction in three procedural stages.
Diversity jurisdiction existed at each stage.
                                              A
       Diversity jurisdiction was proper when Met Life removed the case.
Under 28 U.S.C. § 1441(a), defendants may generally remove “any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction.” District courts have original jurisdiction over civil
actions between citizens of different states if the amount in controversy
exceeds $75,000, which it did here. 4
       And, as Met Life correctly alleged, Unknown Payee could be disregarded
for diversity purposes. Title 28 U.S.C. § 1441(b)(1) provides that “[i]n
determining whether a civil action is removable on the basis of [diversity
jurisdiction], the citizenship of defendants sued under fictitious names shall be
disregarded.” 5 Although “John Doe” is a more common version, Unknown
Payee is the kind of fictitious name this provision covers. 6
       Weaver suggests Met Life acted improperly by removing the case or
waiting to identify Unknown Payee. But she relies on cases decided before the
1988 enactment of § 1441(b)(1). That provision abrogated the earlier cases
permitting fictitious defendants to defeat removal. 7 In short, this case was



       4 See 28 U.S.C. § 1332(a).
       5 See also Vaillancourt v. PNC Bank, Nat’l Ass’n, 771 F.3d 843, 848 n.38 (5th Cir.
2014) (stating “John and Jane Doe” defendants did not affect removability because fictitious-
name defendants shall be disregarded and no claims were asserted against them).
       6 See, e.g., Griffin v. JPMorgan Chase Bank, N.A., No. 2:13–cv–10002, 2013 WL

2237974, at *2 (E.D. Mich. May 21, 2013) (“‘Unknown Trustee’ and ‘Unknown Trust’ are
precisely the type of ‘defendants sued under fictitious names’ that are not to be considered in
determining diversity jurisdiction under 28 U.S.C. § 1441(b)(1).”).
       7 See, e.g., Wilson v. Gen. Motors Corp., 888 F.2d 779, 782 n.3 (11th Cir. 1989).

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                                      No. 18-10517
removable because Met Life was diverse from Weaver; Unknown Payee was a
fictitious-name defendant to be disregarded for diversity purposes; and,
alternatively, Weaver’s state-court petition asserted no claim against
Unknown Payee.
                                             B
       Diversity jurisdiction continued to be proper when the Met Life parties
counterclaimed against Weaver and Perry. Under Federal Rule of Civil
Procedure 22(a)(2), “[a] defendant exposed to [double or multiple] liability may
seek interpleader through a crossclaim or counterclaim.” For Rule 22
interpleader,     diversity    requires     the    stakeholder—the        party    seeking
adjudication of multiple claims against it—to be diverse from the claimants. 8
So Perry did not destroy diversity when the Met Life parties named him in
their counterclaim. Weaver argues that interpleader was not raised in the
notice of removal. But under Rule 22(a)(2), it was a separate claim that could
properly be asserted later.
                                             C
       And diversity jurisdiction remained proper when Weaver added her
money-had-and-received claim against Perry. Initially, it is true that joining a
new party can destroy diversity. Under 28 U.S.C. § 1447(e), “[i]f after removal
the plaintiff seeks to join additional defendants whose joinder would destroy
subject matter jurisdiction, the court may deny joinder, or permit joinder and



       8 Travelers Ins. Co. v. First Nat. Bank of Shreveport, 675 F.2d 633, 637 n.9 (5th Cir.
1982) (stating district court had jurisdiction over Rule 22 interpleader because stakeholder
was diverse from all claimants, although claimants were not diverse from each other); see
Eikel v. States Marine Lines, Inc., 473 F.2d 959, 964 n.5 (5th Cir. 1973); 7 CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1710 (3d ed. 2019).
       In statutory interpleader, the rule is opposite: At least two of the claimants must be
diverse from each other. 28 U.S.C. § 1335(a); State Farm Fire & Cas. Co. v. Tashire, 386 U.S.
523, 530 (1967).
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                                      No. 18-10517
remand the action to the State court.” We explained in the past that “Congress
has indicated that federal diversity jurisdiction is defeated so long as, after
removal, fictitious defendants are replaced with nondiverse, named
defendants.” 9
       But Weaver’s money-had-and-received claim was not a “joinder” as
provided in § 1447(e). It was a new claim against an existing party. The district
court correctly treated this as a matter of supplemental jurisdiction. When a
district court has jurisdiction over one claim, 28 U.S.C. § 1367(a) authorizes
supplemental jurisdiction over other claims so related to it “that they form part
of the same case or controversy.” It is true that when jurisdiction is based on
diversity, the statute excludes certain additional-party claims. Under
§ 1367(b), there is no supplemental jurisdiction over
       claims by plaintiffs against persons made parties under Rule 14,
       19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims
       by persons proposed to be joined as plaintiffs under Rule 19 of such
       rules, or seeking to intervene as plaintiffs under Rule 24 of such
       rules, when exercising supplemental jurisdiction over such claims
       would be inconsistent with the jurisdictional requirements of
       section 1332. 10
But, reading the pleadings literally, Perry was not “made [a] part[y]” under
any of the rules in this exclusion. 11 He was made a party by Met Life under
Rule 22.
       It is also relevant that district courts generally have supplemental
jurisdiction over transactionally-related crossclaims between interpleader




       9 Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 476 (5th Cir. 2001) (quoting Casas
Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 674 (1st Cir. 1994)).
       10 (emphasis added).
       11 28 U.S.C. § 1367(b).

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                                    No. 18-10517
claimants. 12 Weaver’s claim against Perry is not styled a crossclaim and may
be distinguishable from one in some ways. But its practical similarity to a
crossclaim between interpleader claimants is further support for supplemental
jurisdiction. Both a literal reading of the 28 U.S.C. § 1367(b) exclusion and a
practical view of Weaver’s claim against Perry show that supplemental
jurisdiction was proper.
      Met Life threaded the procedural needle to establish diversity in this
case. But diversity jurisdiction was proper for other reasons too. The court has
a duty to realign the parties based on their sides in the dispute. In City of
Indianapolis v. Chase National Bank, the Supreme Court held that “[d]iversity
jurisdiction cannot be conferred upon the federal courts by the parties’ own
determination of who are plaintiffs and who defendants. It is [the court’s] duty
. . . to look beyond the pleadings, and arrange the parties according to their
sides in the dispute.” 13 We have elaborated that “[t]he objective of City of
Indianapolis realignment is only to insure that there is a bona fide dispute
between citizens of different states.” 14 For diversity jurisdiction to be proper in
this case, the real dispute must be Weaver and Perry against the Met Life
parties.
      It is fair to say that’s the case. The reason that diversity in Rule 22
interpleader cases is measured between the stakeholder and the claimants is
that the stakeholder has its own interest in the case—to be relieved of double




      12   See Travelers, 675 F.2d at 638 (stating that “ancillary” jurisdiction includes
crossclaims arising from the same transaction or occurrence as the interpleader claim); 7
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1715 (3d
ed. 2019).
       13 314 U.S. 63, 69 (1941) (internal quotation marks omitted).
       14 Zurn Indus., Inc. v. Acton Const. Co., 847 F.2d 234, 237 (5th Cir. 1988).

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                                      No. 18-10517
or multiple liability. 15 That is the Met Life parties’ position here. It may seem
odd that the interpleader counterclaim effectively pivoted the diversity
analysis. But the counterclaim was proper as a formal matter, and it served at
least some substantive interest. 16
       Our decision Eikel v. States Marine Lines, Inc. confirms the same
principle in a non-interpleader context. 17 It was a fee dispute between a
Delaware- and Connecticut-citizen client and its Texan former lawyers. 18 The
court joined another Texan lawyer, who had a competing claim against the
client, as an indispensable party. 19 Despite his adversity to the other Texans,
diversity jurisdiction remained proper. 20 This was because the “crux” of the
suit was to recover payment from the client—even though the client had
admitted liability. 21 The court said in dicta that a Rule 22 interpleader
counterclaim by the client—exactly Met Life’s course of action here—would
have simplified the case and preserved diversity. 22
       Existing law is relatively uniform that, in Rule 22 interpleader, a
stakeholder diverse from the claimants supports diversity jurisdiction. 23 And
the interests here are not sufficient to put aside form and realign the parties
as they were arranged in Weaver’s original suit. 24


       15 See Stewart Oil Co. v. Sohio Petroleum Co., 315 F.2d 759, 761–62 (7th Cir. 1963); 7
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1710 (3d
ed. 2019).
       16 See Stewart, 315 F.2d at 761–62.
       17 473 F.2d at 960–61.
       18 Id.
       19 Id. at 961.
       20 Id. at 964.
       21 Id. at 964–66.
       22 Id.
       23 See Travelers, 675 F.2d at 637 n.9; 7 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE & PROCEDURE § 1710 (3d ed. 2019).
       24 Cf. Zurn, 847 F.2d at 237 (declining to realign parties where there was a bona fide

dispute between diverse parties).
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                                     No. 18-10517
                                           IV
      Since the district court had jurisdiction, we next review Weaver’s merits
argument that summary judgment should not have been granted. “As this is a
diversity case, [the court] interpret[s] the contract at issue under Texas law.” 25
“If the written instrument is so worded that it can be given a certain or definite
legal meaning or interpretation, then it is not ambiguous and the court will
construe the contract as a matter of law.” 26 “[C]ourts should examine and
consider the entire writing in an effort to harmonize and give effect to all the
provisions of the contract so that none will be rendered meaningless.” 27
      The first issue is whether Larry had a contractual right to change the
beneficiary. The law begins with language. And whether the language is
contractual, as here, or statutory, we give words their ordinary, natural
meaning. “Text is the alpha and the omega of the interpretive process.” 28 And
when decoding language, judges “must be attentive not to words standing alone
but to surrounding structure and other contextual cues that illuminate
meaning.” 29 Here, we decline to engraft what the parties declined to enact.
      The Settlement Agreement provides that “Claimant reserves the right to
request to change the beneficiary of future periodic payments.” After such a
request, the right to accept or reject the change belongs to Metropolitan Tower.
The question is whether “Claimant” means Larry alone or both Weaver and
Larry.
      The Claimant was Larry alone because the Settlement Agreement
granted periodic payments to him alone. Under that agreement, the initial


      25 Gonzalez v. Denning, 394 F.3d 388, 392 (5th Cir. 2004) (per curiam).
      26 Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
      27 Id.
      28 United States v. Maturino, 887 F.3d 716, 723 (5th Cir. 2018).
      29 Reed v. Taylor, 923 F.3d 411, 415 & n.16 (5th Cir. 2019).

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lump sum payment was for Weaver, Larry, and their attorney: “$300[],000.00
Cash payment to Larry Hickey, Diane Hickey and Edward McAninch . . . .” But
the periodic payments from the remaining $550,000 were for Larry alone while
he lived: “Periodic Payments 1. Wausau Lloyds Insurance Company hereby
agrees to make the following monthly payments to Larry Hickey . . . .” This
description of the periodic payments heads the same paragraph that ends with
“Claimant reserves the right to request to change the beneficiary of future
periodic payments.” It suggests Larry is the Claimant. Finally, the Settlement
Agreement links the term “Claimant” to the periodic payments’ sole recipient
again two pages later. “The periodic payments to be received by Claimant
pursuant to Periodic Payments . . . are not subject in any manner to [forms of
assignment].” These provisions support the Claimant being Larry and not
Weaver and Larry together.
       And the Assignment explicitly defines “Claimant” to be Larry. Granted,
the Assignment is a separate instrument from the Settlement Agreement
(which contains the beneficiary-change provision). But the Assignment is part
of the same settlement and central to Weaver’s contract theory here. 30
       Weaver generally contends that she shared in the right to the periodic
payments. In the Settlement Agreement she gave consideration separate from
Larry because she released her own claims for mental pain and loss of
consortium. But the Settlement Agreement’s most natural reading is that she
received the lump sum in return for those, and Larry received the periodic
payments in return for his personal-injury claims.




       30Cf. Coker, 650 S.W.2d at 394 (“Whether a contract is ambiguous is a question of law
for the court to decide by looking at the contract as a whole in light of the circumstances
present when the contract was entered.”).
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      Our plain-language reading honors Texas courts’ text-centric approach.
The Supreme Court of Texas has observed that the interpretive role of judges
“is to be neither generous nor parsimonious” 31 but unswervingly faithful to
what the words actually say. Looser atextual readings may scratch an
equitable itch, or at times seem more pragmatic. But the Texas High Court
adheres to this centuries-old principle—“law, without equity, though hard and
disagreeable, is much more desirable for the public good, than equity without
law: which would make every judge a legislator, and introduce the most infinite
confusion.” 32 Texas precedent is no-nonsense about giving words their most
forthright, contextual meaning. Plain language forbids judicial ad-libbing.
Here, the text is clear. And, at least in Texas, clear text = controlling text. 33
      Weaver also lacks a right to sue. Her operative complaint alleges breach
of the Settlement Agreement, but Met Life and Metropolitan Tower are not
parties to the Settlement Agreement. Weaver alternatively contends she is a
third-party beneficiary of the Assignment and the Annuity. But Texas contract
law from life insurance cases undermines this. “When an insured retains the
right to change the beneficiary in a life insurance policy, a beneficiary
ordinarily acquires no vested rights, by virtue of designation, in either the
policy or its proceeds until the insured’s death . . . .” 34 That is, a revocable life-
insurance beneficiary has no vested contract right unless she is the designated
beneficiary when the insured dies. 35 By the same principle, an annuity




      31 BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 85 (Tex. 2017).
      32 Id. at 86 (citing 1 William Blackstone, Commentaries 62 (4th ed. 1770)).
      33 Id. at 84.
      34 Fid. Union Life Ins. Co. v. Methven, 346 S.W.2d 797, 799 (Tex. 1961).
      35 See id.

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beneficiary has no vested contract right if she is properly removed before the
principal claimant dies. 36
       Larry requested a beneficiary change before Weaver had any vested
right in the periodic payments. So Weaver has no rights under the Assignment
or Annuity, which are the only agreements that bind the Met Life parties. This
frustrates Weaver’s breach of contract claim. It also means Weaver cannot
object to Met Life’s or Metropolitan Tower’s procedures for implementing
Larry’s change request. 37
       Weaver cannot recover from Perry either. The money-had-and-received
claim is based on Weaver’s right to receive the annuity payments after Larry’s
death. Since Weaver had no such contractual right, she is not entitled to
recover from Perry. 38 Weaver’s declaratory judgment claim, based on the same
contracts, also lacks merit.
                                              V
       We AFFIRM the judgment.




       36 Cf. Royal Indem. Co. v. Bates, 314 F. App’x 732, 733 (5th Cir. 2009) (holding that
annuity payments vested only as they came due).
       37 See Methven, 346 S.W.2d at 800 (holding plaintiff had no right to insist that change

of beneficiary be endorsed on policy paper itself).
       38 See Staats v. Miller, 243 S.W.2d 686, 687 (Tex. 1951) (holding that money-had-and-

received claim asks “to which party does the money, in equity, justice, and law, belong”).
                                             14
