Wetmore v. Scalf

• Decision Date: 17 March 1910
• Citation: 67 S.E. 298,85 S.C. 285
• Parties: WETMORE v. SCALF.
• Court: South Carolina Supreme Court

67 S.E. 298

85 S.C. 285

WETMORE v. SCALF.

Supreme Court of South Carolina

March 17, 1910

Appeal from Common Pleas Circuit Court of Spartanburg County; J. C Klugh, Judge.

Proceeding by S. M. Wetmore, as receiver of the Carolina Mutual Fire Insurance Company, against H. R. Scalf, under an order of the court in a suit by J. H. Parris against the Carolina Mutual Fire Insurance Company. From a judgment for the receiver defendant Scalf appeals. Affirmed.

Jas. H Price and Geo. M. Pritchard, for appellant. J. W. Nash, for respondent.

WOODS J.

On May 2, 1907, the defendant, a resident and citizen of Greenville county, became a member of the Carolina Mutual Fire Insurance Company, and on that date received from the company an insurance policy for $400. On June 6, 1908, J. H Parris brought suit in the court of common pleas for Spartanburg county against the Carolina Mutual Fire Insurance Company, and on June 9, 1908, S. M. Wetmore was duly appointed receiver of said corporation. On September 22, 1908, his honor, Judge Klugh, passed an order, which contained, among other things, the following paragraph with respect to the duties of the receiver: "The receiver is also ordered to proceed to collect the past due and unpaid assessments that were levied by the directors and officers of the company before the receiver was appointed, along with the assessment which he is herein ordered to make; and, if any parties owing such assessments, past and future, should fail within a reasonable time to pay them, he shall, where in his judgment the interest of the creditors may be enhanced, file the statutory certificate so as to secure the lien upon any real estate insured. If any of such parties fail to pay, they are hereby made parties defendant in the main action, and the receiver is instructed to serve them with such summons and complaint as will bring them into this court and make them account, with a view to enforcing the payment of the assessments. The receiver is hereby permitted to amend his complaint so as to conform to the practice of this court in such particulars as may be proper and convenient."

In pursuance of this order on July 29, 1909, the receiver had served on H. R. Scalf, as one of the defaulting members of the Carolina Mutual Fire Insurance Company, a summons and complaint under the title "S. M. Wetmore, as Receiver for Carolina Mutual Fire Insurance Company, Plaintiff against H. R. Scalf, Defendant, in re J. H. Parris, Plaintiff, v. Carolina Mutual Fire Insurance Company, Defendant." The summons was in the usual form, and the complaint alleged: "(1) That on the 9th day of June, 1908, he was duly appointed receiver for Carolina Mutual Fire Insurance Company by this court, and has duly qualified as such. (2) That prior to said time defendant became a member of said company, which was a mutual fire insurance association, duly chartered under the laws of this state; that pursuant to said membership said company issued to defendant its policy No. 6,431, covering certain property hereinafter described, which policy has since said date been in possession of the defendant, and it is unnecessary to set out same herein. (3) That under the terms of said policy and the constitution and by-laws of the company, which constitute a part of same, and under section 1916 of the Code of Laws of this state, the property herein described and the land upon which same is situated were and are pledged to said company for the amount of the lawful assessments and dues levied against defendant, and this plaintiff now has a lien to this effect. (4) That the property so insured and the land upon which same is situated are described as follows: One-story, shingle-roof, frame building occupied May 2, 1907, by H. R. Scalf as store and dwelling, on Slanding Springs road, Greenville county, R. F. D. No. 4 from Greenville, S. C., adjoining property of A. Walker Hampton, and Reedy River Manufacturing Company. (5) That on the 4th day of March, 1909, there was filed and recorded in the office of the clerk of R. M. C. for the county in which the property is situated the statutory lien above referred to. (6) That on the 3d day of October, 1908, this court ordered this plaintiff to levy an assessment on all policy holders, the share of this defendant being $20.25, and to collect former unpaid assessments levied by the directors of the company, amounting to $15, upon the defendant as a member of said company, to pay losses and expenses arising under the policy and bylaws; that due notice of such assessment be mailed the defendant, and, if not paid within 30 days, that plaintiff collect same according to law; that such notice was mailed defendant more than 30 days ago, and the assessment remains unpaid. (7) That on said October 3, 1908, this court ordered that defendant, with other defaulting policy holders, many of whom live in Spartanburg county, be made parties defendant in the main action, and be brought in for the purpose of collecting said assessment. Wherefore plaintiff prays judgment against defendant for the amount due and costs, and for...