Allison v. Fidelity Mutual Fire Insurance Company

• Decision Date: 20 September 1905
• Docket Number: 13,860
• Citation: 104 N.W. 753,74 Neb. 366
• Parties: EDWARD M. ALLISON ET AL., APPELLEES, v. FIDELITY MUTUAL FIRE INSURANCE COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

104 N.W. 753

74 Neb. 366

EDWARD M. ALLISON ET AL., APPELLEES, v. FIDELITY MUTUAL FIRE INSURANCE COMPANY ET AL., APPELLANTS

No. 13,860

Supreme Court of Nebraska

September 20, 1905

APPEAL from the district court for Douglas county: IRVING F. BAXTER JUDGE. Reversed with directions.

REVERSED.

Baldrige & De Bord, for appellants.

Isaac E. Congdon, contra.

LETTON C. AMES and OLDHAM, CC., concur.

OPINION

LETTON, C.

This is an appeal from a decree of the district court for Douglas county allowing a claim against the receiver of the Fidelity Mutual Fire Insurance Company. The Fidelity Mutual Fire Insurance Company and the Merchants and Manufacturers Fire Insurance Company were mutual insurance companies organized and doing business under the laws of this state providing for mutual fire insurance companies. The respective companies were each in the custom of reinsuring with the other any risks which they did not wish to assume in their entirety. Both organizations became insolvent and were placed in the hands of receivers. The receiver of the Merchants and Manufacturers Fire Insurance Company claimed that the Fidelity Mutual Fire Insurance Company was indebted to the Merchants and Manufacturers Fire Insurance Company for a balance of $ 2,532.79 due for assessments on policies issued to it for such reinsurance, and a further sum of $ 300 due for a reinsured loss, and that an assessment had been made by the district court in the receivership proceedings to that amount. An answer was filed to this claim, containing a general denial, a denial that an assessment had been made by the district court, and setting up a settlement between the companies, with other defenses not necessary to notice. No reply was filed to this answer.

Appellant insists that the affirmative allegations of the answer, not being denied by a reply, stand admitted, and that it is entitled to a dismissal upon the pleadings. As to this, it is not the usual practice to compel creditors of insolvent corporations whose affairs are being settled up by a receiver under the direction of the court to draw their claim with the nicety and formality required in ordinary legal procedure nor are technical rules of pleading usually applied. In such a case as this, however, when it is apparent there is a substantial controversy between the parties, the better practice is for the court to direct issues to be made up, and the pleadings in such case...