Holz v. Smullan

• Decision Date: 03 May 1960
• Docket Number: No. 12758.,12758.
• Citation: 277 F.2d 58
• Parties: Leffert HOLZ (Thomas Thatcher, Successor) Superintendent of Insurance of the State of New York as Liquidator of The Preferred Accident Insurance Company of New York, Plaintiff-Appellee, v. Alexander SMULLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

277 F.2d 58 (1960)

Leffert HOLZ (Thomas Thatcher, Successor) Superintendent of Insurance of the State of New York as Liquidator of The Preferred Accident Insurance Company of New York, Plaintiff-Appellee, v. Alexander SMULLAN, Defendant-Appellant.

No. 12758.

United States Court of Appeals Seventh Circuit.

March 28, 1960.

Rehearing Denied May 3, 1960.

Maurice James Moriarty, Chicago, Ill., for appellant.

Thomas E. Moran, Chicago, Ill., J. M. Rosenfield, Chicago, Ill., for plaintiff-appellee. Rothbart & Rosenfield, Chicago, Ill., of counsel.

Before DUFFY and CASTLE, Circuit Judges, and SWYGERT, District Judge.

DUFFY, Circuit Judge.

This suit was brought by plaintiff as Domiciliary Liquidator of a New York insurance company to require defendant, as agent of said company, to account for moneys allegedly received by defendant on policies of insurance issued by that company. On June 21, 1957, the District Court, by Judge Barnes, entered what was designated as an "interlocutory judgment," requiring defendant to account, and referring the accounting to a master.

On July 1, 1957, defendant filed objections to the appointment of a master, claiming the amounts to be ascertained by the reference had already been ascertained by means of interrogatories. After the retirement of Judge Barnes from the Court, the case was transferred to Judge Campbell. After holding a pretrial conference, an order was entered by Judge Campbell setting aside the reference to a master. On January 8, 1959, Judge Campbell filed findings of fact, and ordered defendant to account to plaintiff for $5,861.65 with an offset of $184.71.

A judgment order was entered February 18, 1959, directing that plaintiff recover from defendant $7,880.62 and costs. Although the record does not disclose it, we assume the difference in the amounts reflected in the order of January 8, 1959 which "adjudged" $5,861.65 to be due (less $184.71 offset) and the figure of $7,880.62 in the judgment order of February 18, 1959, is due to accrued interest.

On February 25, 1959, defendant filed a motion that said judgment be vacated and set aside and for a new trial. He also moved for an arrest of judgment. On May 4, 1959, the District Court denied defendant's motions for a new trial and in arrest of judgment. On May 29, defendant filed a notice of appeal in the following form:

"Please take notice that Alexander Smullan, defendant in the above entitled cause, hereby appeals to the U. S. Court of Appeals for the Seventh Circuit from the order entered in the U. S. District Court, Northern District of Illinois, Eastern Division, on May 4, 1959 denying the defendant\'s motions for a new trial and for arrest of judgment."

On April 1, 1949, the Preferred Accident Insurance Company of New York Preferred entered into an agency agreement with defendant under which defendant wrote a considerable number of insurance policies. On April 30, 1951, by order of the Supreme Court of the State of New York, the Superintendent of Insurance of that State took possession of Preferred in order to liquidate its business and affairs. The order vested in the Superintendent of Insurance of New York all the property, contracts and rights of Preferred.

Plaintiff commenced this suit on October 6, 1955, seeking an accounting for certain unearned premiums which had been collected by defendant. The answer admitted defendant had received and collected insurance premiums on policies issued by Preferred, but set up an affirmative defense of accord and satisfaction with J. Edward Day, Director of Insurance for the State of Illinois, as ancillary liquidator of Preferred.

On May 10, 1951, the Circuit Court of Cook County, Illinois, appointed J. Edward Day as ancillary liquidator for Preferred, granting him power to proceed with the liquidation of Preferred in Illinois. On November 2, 1951, Day, as ancillary liquidator, sent to defendant a statement of his account with Preferred as of April 30, 1951, the date when Preferred was placed in liquidation.

On March 6, 1952, Day, as Liquidator of Preferred, sent to defendant a revised statement of account stating: "You will please note that allowances have been made on flat cancellations and also on pro-rata cancellations." It was and is defendant's contention that Preferred, having gone out of business, was not entitled to the unearned premiums on policies which it had issued but which were no longer in force and effect. It is clear from the record before us that defendant, with the permission of the ancillary liquidator, returned all unearned premiums to those who had purchased "Preferred" insurance policies from him as well as brokers and agents. In fact, plaintiff does not claim that defendant personally appropriated the unearned premiums. He contends that defendant had no right or authority to refund same, and seeks to hold him personally responsible for so doing.

We are met with a threshold question raised by plaintiff's motion to dismiss the appeal. It is urged the order of May 4, 1959 appealed from is not an appealable order. Further, that the contested issues before us were all decided adversely to defendant by the trial court on June 21, 1957, hence defendant's notice of appeal filed May 29, 1959 was not timely.

Rule 73, Federal Rules of Civil Procedure, 28 U.S.C.A., covers the procedure to be taken in an appeal from a District Court to a Court of Appeals. Subsection (d) specifically provides: "The notice of appeal * * * shall designate the judgment or part thereof appealed from * * *." The notice of appeal in the instant case did not do so, — indeed, it did not mention the judgment at all. It stated the appeal is taken from the order entered "on May 4, 1959 denying the defendant's motion for a new trial and for arrest of judgment."

Not too many years ago, it was almost Hornbook law that such a notice of appeal would be held insufficient, but then came the per curiam opinion of the Supreme Court in State Farm Mutual Automobile Insurance Company v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823, dated January 16, 1956, reversing the decision of the Ninth Circuit appearing in 225 F.2d 876, 877.

In the Palmer case, judgment had been entered for plaintiff on July 6, 1954. Defendant filed a motion for a new trial and to amend the findings. This motion was denied on August 24, 1954. Defendant filed a notice of appeal "from the order entered in the above-entitled and numbered cause on August 24, 1954." The Court of Appeals dismissed the appeal on the ground the order appealed from was not appealable. The Court said the only final decision which could have been appealed from was the judgment of July 6, 1954. The only information given by the Supreme Court as a reason for its reversal was the citation of two cases, Hoiness v. United States, 335 U.S. 297, 69 S.Ct. 70, 93 L.Ed. 16 and United States v. Ellicott, 223 U.S. 524, 32 S.Ct. 334, 56 L.Ed. 535.

In Nolan v. Bailey, 7 Cir., 1958, 254 F.2d 638, we interpreted the Supreme Court's decision in State Farm Mutual Automobile Insurance Company v. Palmer, supra, to mean that a failure to designate the judgment complained of in the notice of appeal is not a fatal defect, if the intent of the appellant to appeal from the judgment may be inferred from the text of the notice, and if appellee has not been misled by the defect. We cited the Eighth Circuit case, Railway Express Agency, Inc. v. Epperson, 240 F.2d 189, 192, where the same conclusion had been reached.

In the instant case, there is no claim or proof that appellee was...