Bockover v. Life Ass'n of America

• Citation: 77 Va. 85
• Parties: BOCKOVER v. LIFE ASSOCIATION OF AMERICA AND ALS.
• Decision Date: 25 January 1883
• Court: Supreme Court of Virginia

77 Va. 85

BOCKOVER v. LIFE ASSOCIATION OF AMERICA AND ALS.

Supreme Court of Appeals of Virginia.

January 25, 1883

Appeal from decree of chancery court of the city of Richmond in suit of Benjamin T. Bockover, plaintiff, against the Life Association of America, Wm. C. Knight, T. M. Fowlkes, E. C Stacy, Geo. P. Stacy, John A. Mosby, Thomas Guy, H. C Hechler, J. R. Rennie, W. A. Rennie, John H. Wright, R. S Elam, T. G. Elam, Thomas B. Henley, A. T. Hundley, W. H Toppy, Miles B. Branch, and B. K. M. Friend, defendants. The plaintiff in 1872 insured his life for $10,000, payable in 1882, in the defendant company, which was chartered in Missouri. In 1879, a Missouri court decreed it to be insolvent. Under the decree, and a Missouri statute enacted in 1879, all its assets were vested in Wm. S. Relfe, superintendent of the insurance department, for the use of its creditors and policy-holders. The object of the suit was to attach debts due company in Virginia. The chancery court abated the attachments. Bockover appealed. At its November term, 1882, this court affirmed the decree. A re-hearing was granted him. The opinion states the other facts and proceedings.

John Hunter, Thomas Tabb and Kent & Neale, for the appellant.

Richard L. Maury, for the appellees.

OPINION

HINTON, J.

This case is before this court upon a rehearing, and it has received the careful consideration which its importance demands.

The facts and pleadings, so far as they may be necessary for a proper understanding of the points decided, may be briefly stated as follows:

The Life Association of America, was, as its name indicates, a life insurance company, regularly incorporated under the laws of the state of Missouri, and doing business in the state of Virginia.

In this company the appellant, Benjamin T. Bockover, insured his life on the 28th day of September, 1872, for the benefit of his wife and children, for the sum of $10,000, payable on the 28th of September, 1882, his policy being what is usually termed an endowment policy.

The company was, upon proper proceedings before a court of competent jurisdiction, in the state of Missouri, decreed to be insolvent, and on the 10th day of November, 1879, a decree of dissolution was entered, and in pursuance of said decree, and an act of the general assembly of the state of Missouri, all of the assets of said company were vested in and transferred to one William S. Relfe, superintendent of the insurance department of that state, who was authorized to sue for, hold and dispose of the same for the use and benefit of the creditors and policy-holders of said company.

In February, 1880, the appellant instituted suit in the chancery court of the city of Richmond to attach certain debts due here to the defendant company by citizens of this state. Upon the filing of his bill, and upon the affidavit required by law, an attachment was sued out of the clerk's office of the chancery court of the city of Richmond, and the parties who were indebted to the said Life Association of America were duly summoned to appear and answer.

This bill the Life Association of America answered, admitting the insurance of the appellant, and without controverting the amount of the claim in controversy, denied that the debts sought to be attached were liable to the claim of the plaintiff by virtue of said attachments.

The answer of said company then goes on to aver the institution of a suit in the circuit court of St. Louis by the said Relfe, superintendent as aforesaid, under the provisions of the existing laws of Missouri against said company, alleging that it was insolvent, and seeking to have it dissolved. It also avers that the court found the said company to be insolvent; and that on the 10th day of November, 1879, the court entered an order of dissolution, and conveyed all of the assets and property of said company, wherever situated, including the notes or debts in controversy, which were then in the possession of the defendant company to Relfe, superintendent as aforesaid, for the benefit of the company's creditors and members. And with this answer the charter of said company and the decree of the circuit court of St. Louis are filed as exhibits.

On the 5th day of February, 1881, the said Relfe was made a party defendant upon his own petition, in which he alleged inter alia, that, by operation of the statute aforesaid, he was the legal successor of said company, and as such entitled to all of its assets, and authorized to defend all suits against it.

On the 24th day of February, 1881, the cause was heard, when the chancellor, being of opinion that the attachments were issued without sufficient cause, entered an order abating them.

From this decree the appellant was allowed an appeal by one of the judges of this court.

The question to be determined is, whether the said attachments were properly abated. And the solution of that question must depend in great measure, if not entirely,...