Aetna Insurance Co. v. Hyde

• Decision Date: 08 January 1931
• Docket Number: No. 26187.,26187.
• Citation: 34 S.W.2d 85
• Parties: AETNA INSURANCE COMPANY et al. v. BEN C. HYDE, Superintendent of Insurance Department of State of Missouri, Appellant.
• Court: Missouri Supreme Court

34 S.W.2d 85

AETNA INSURANCE COMPANY et al. v. BEN C. HYDE, Superintendent of Insurance Department of State of Missouri, Appellant.

No. 26187.

Supreme Court of Missouri, in Banc.

January 8, 1931.

Petition for Order to Compel Restitution.

PETITION DENIED.

ATWOOD, J.

An opinion on the merits was promulgated in this case, sometimes referred to as the Aetna case, on May 21, 1926, and is reported in 315 Mo. 113, 285 S.W. 65. The purpose of this opinion is to indicate our ruling and grounds thereof on a petition filed herein at the April term, 1930, by the State of Missouri and Joseph B. Thompson, Superintendent of the Insurance Department of the State of Missouri, in the nature of a motion for an accounting of the excess premiums of insurance in said petition alleged to have been collected by respondents and for an order taking over the same and providing for their proper distribution. The petition prays "this court to make an order assuming jurisdiction of this fund and to order an accounting; to appoint a commissioner or commissioners to take charge of and to distribute this fund; to ascertain the amount due the policyholders of Missouri and to see that they receive what is due them; and that such insurance companies report to such commissioners or this court the amount of money which they have already paid policyholders of Missouri and the amount of money yet due such policyholders; to protect the interest of the State of Missouri and the policyholders of the State and to make any and all orders necessary to effectuate the opinions of the court and to see that complete justice is done between all parties."

Our record in the Aetna case shows that on October 9, 1922, the Superintendent of the State Insurance Department ordered a reduction in fire insurance rates of ten per cent in accordance with Section 6283, Revised Statutes 1919, to become effective November 15, 1922. On November 10, 1922, about 160 stock fire insurance companies then doing business in this State commenced this proceeding in the Circuit Court of Cole County for a review of the order as provided by Section 6284, Revised Statutes 1919. The pleadings were made up, the cause referred, evidence heard and report of the referee containing his findings of fact and conclusions of law was filed. On December 22, 1924, the circuit court sustained the report of the referee and adjudged that the "rate reduction order, and each and every finding, order and direction therein, made and promulgated by the defendant Ben C. Hyde, Superintendent of the Insurance Department of the State of Missouri, under date of October 9, 1922 (wherein said defendant ordered a reduction of ten per cent in the rates charged by the stock fire, lightning, hail and windstorm insurance companies doing business in Missouri on fire, lightning, hail and windstorm insurance business written in the State of Missouri), be and the same is now cancelled, set aside and for naught held." Defendant appealed therefrom to the Supreme Court of Missouri where the judgment was reversed, as appears from our opinion on the merits hereinabove referred to and reported in 315 Mo. 113, 285 S.W. 65. The last paragraph of that opinion is as follows:

"Therefore, we conclude that on the evidence before the referee and the trial court the reduction order was authorized as it was made. The judgment of the trial court is, therefore, reversed and the proceedings dismissed."

Our judgment entry therein of May 21, 1926, omitting caption, is as follows:

"Now at this day, come again the parties aforesaid, by their respective attorneys, and the court being here now sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment aforesaid, in form aforesaid, by the said Circuit Court of Cole County rendered, be reversed and annulled, and for naught held and esteemed, and that the said appellant be restored to all things which he has lost by reason of the said judgment. It is further considered and adjudged by the court that the said cause be, and the same is hereby, dismissed and that said appellant recover against the said respondents his costs and charges herein expended and have execution therefor. (Opinion filed.)"

On June 24, 1926, an order granting stay of execution for a period of nine months was made on application of respondents to enable them to apply to the Supreme Court of the United States for a writ of certiorari, and bond for $10,000 for all damages and costs "which the appellant may sustain by reason of said stay" was filed and approved. On June 29, 1926, appellant filed motion in this court to compel respondents to impound premiums collected or give additional security, which motion was "denied without prejudice" on August 6, 1926. On November 1, 1926, writ of certiorari was granted by the Supreme Court of the United States (273 U.S. 681), and upon hearing the writ was dismissed on the ground that no Federal question was presented. [Aetna Insurance Company v. Hyde, 275 U.S. 440, 448.] On February 10, 1928, mandate was issued from said court to the Supreme Court of Missouri, containing among other things, the following recital:

"It is now here ordered and adjudged by this court that the writ of certiorari in this cause be and the same is hereby, dismissed with costs; and that the said appellant, Ben C. Hyde, Superintendent of the Insurance Department etc., recover against the said respondents for his costs herein expended and have execution therefor, January 3, 1928. And the same is hereby remanded to you, the said Judges of the said Supreme Court of the State of Missouri, in order that such execution and proceedings may be had in said cause, in conformity with the judgment and decree of this court above stated as according to right and justice, and the Constitution and laws of the United States, ought to be had therein, the said writ of certiorari notwithstanding."

This mandate was filed here on February 13, 1928, and on March 7, 1928, at the October term. 1927, our mandate in form of certified copy of our judgment entry above was issued to the Circuit Court of Cole County, Missouri. Thereafter, on April 9, 1928, at the same term, the following order was here entered of record in said cause:

"It is ordered that this court retain jurisdiction in this cause for the purpose of making any other orders or judgments in the future which to the court shall seem just and Jurisdiction: proper." Petitioners insist that by virtue of this Reservation: last order we have jurisdiction to make the orders After Term. they now seek. The general doctrine as to modification of a judgment by additional order or amendment made beyond the term at which the judgment was rendered is thus stated in 1 Freeman on Judgments (5 Ed.) sec. 166, p. 326:

"So far as the correction or amendment of the judgment or decree itself is concerned, at least in matters of substance, the power ceases with the end of the term, unless otherwise provided by statute." [Cf. also 15 R.C.L., sec. 124, p. 673; and 34 C.J. 210.] We have held that Section 1277. Revised Statutes 1919, does not provide otherwise. [Burnside v. Wand, 170 Mo. 531, 543, 71 S.W. 337, and cases cited.] Petitioners have cited no statute that does, and we are aware of none. The above doctrine is firmly established in this State. [Crawford v. C.R.I. & P. Ry. Co., 171 Mo. 68, 75, 66 S.W. 350; State v. Gartrell, 171 Mo. 489, 505, 71 S.W. 1045; State ex rel. v. Ellison, 267 Mo. 321, 327, 184 S.W. 963.] Of course, this general rule is subject to the well recognized qualification that if a court has retained and continued its jurisdiction in a particular cause by a reservation or other act, through a motion or other proceeding during the term, its power and control over its final judgment or decree survive the end of the term at which it was rendered or granted. [Collier v. Lead Company, 208 Mo. 246, 274, 275, 106 S.W. 971; Guinan v. Donnell, 201 Mo. 173, 208, 209, 98 S.W. 478, and cases cited.] But nothing of that kind was done in this case. It follows that our order of April 9, 1928, reciting that we "retain jurisdiction in this cause for the purpose of making any other orders or judgments in the future which to the court shall seem just and proper," is limited by this doctrine, because the order was made during the October term, 1927, long subsequent to May 21, 1926, which was during the April term, 1926, when our final judgment herein was rendered and entered of record. The jurisdiction of this court to make "any other orders or judgments" in this case which to it should "seem just and proper" ended with the term at which its final judgment was rendered. This would have been true even if the losing parties had not sought to have the judgment reviewed by a superior court, and the fact that we withheld our mandate to allow them to apply to the Supreme Court of the United States for writ of certiorari did not toll our jurisdiction to change the judgment in matters of substance beyond the end of the term. After the case was heard in that court it would have been our duty to modify our judgment, had its mandate so provided, not because of any jurisdiction in this court to make "any other orders or judgments" that to us should "seem just and proper," as petitioners contend, but in obedience to the mandate of the superior court. As a matter of fact, however,...