Am. Cent. Ins. Co. of St. Louis v. Hettler

• Decision Date: 17 October 1893
• Citation: 37 Neb. 849,56 N.W. 711
• Parties: AMERICAN CENT. INS. CO. OF ST. LOUIS v. HETTLER.
• Court: Nebraska Supreme Court

37 Neb. 849

56 N.W. 711

AMERICAN CENT. INS. CO. OF ST. LOUIS

v.HETTLER.

Supreme Court of Nebraska.

Oct. 17, 1893.

Syllabus by the Court.

1. An insurance company, having sustained a loss in this state which is adjusted and payable here, cannot be garnished in another state, where it has neither property nor money of the debtor subject to the process of the court.

2. Garnishment is an attachment by means of which money or property of a debtor in the hands of a third party, which cannot be levied upon, may be subjected to the payment of the creditor's claim. To subject such property to attachment, it must be within the jurisdiction of the court.

Error to district court, Saline county; Gaslin, Judge.

Action on a policy of fire insurance by O. P. Hettler against the American Central Insurance Company of St. Louis, Mo. Plaintiff had judgment, and defendant brings error. Affirmed.

Abbott & Abbott, for plaintiff in error.

F. I. Foss, for defendant in error.

MAXWELL, C. J.

This action was brought in the district court of Saline county, by the defendant against the plaintiff, to recover $500 for loss upon a policy of insurance issued by the plaintiff. To this the plaintiff in error answered, setting up that it had been garnished in the state of Illinois, and the answer of the garnishees sustained. The service in that case on Hettler was by publication. A copy of the opinion of Gary, P. J., is set out in the record. The cause was submitted to the court below on the following stipulation: “It is hereby stipulated and agreed, by and between the parties plaintiff and defendant to this action, that the plaintiff was insured by the defendant company, and that the loss occurred as stated in plaintiff's petition, and that the same was adjusted at the sum of $500, and no part of the same has been paid; that the plaintiff is a resident of Saline county, Nebraska, is the head of a family, residing with and supporting the same at Crete, Saline county, Nebraska, and has for the last past five years, and has neither lands, town lots, nor houses subject to exemption as a homestead under the laws of this state; and that the plaintiff in this action has no personal property which would be subject to execution, or which would be exempt to him, except a few articles which would come under section 530 of the Code of Civil Procedure, such as household furniture, which are of but little value; and that the $500 which the plaintiff seeks to have as exempt to him in this action is all the personal property he has. The filing of an inventory as required by law is hereby waived, it being admitted that the $500 is exempt, in addition to whatever property the plaintiff may have under the laws of the state of Nebraska; that the defendant company has its headquarters and principal office at St. Louis, Mo., but has a permanent agency at Crete, Saline county, Nebraska, does business there, and is so authorized by the laws of this state, and that said insurance was effected at that agency; that the agent at Crete is and was Jindra & Co., Joseph Jindra being the senior and principal member of that firm. It is also agreed that said defendant company has a general and permanent agency at the city of Chicago, in the state of Illinois, does an insurance business there, and has complied with all the laws of that state in that behalf, and that C. M. Rogers is its duly-authorized agent at Chicago, and was such on and prior to the 29th day of May, 1891; that, on that date, August Beck & Co., a firm residing and doing business at Chicago aforesaid, commenced an action by attachment against this plaintiff on an account held by them against the plaintiff for goods ordered by plaintiff from them at Chicago, and by them sent to plaintiff by railroad from that place, claiming the sum of $289.21; that the attachment writ ran against plaintiff as principal, and this defendant as garnishee, and was duly served on said agent Rogers on said date; that defendant at once notified said Hettler of that fact by mail, and that all subsequent proceedings were had as shown by the transcript of proceedings filed herewith; that the law and practice in Illinois is that, on filing of answer by a garnishee, the plaintiff in garnishment may accept the answer...