Barker v. C. Lamb & Sons
| Decision Date | 16 October 1896 |
| Parties | THOMAS PARKER, JR., Receiver, Appellant, v. C. LAMB & SONS |
| Court | Iowa Supreme Court |
Appeal from Clinton District Court.--HON. P. B. WOLFE, Judge.
ACTION at law to recover upon two premium notes given by the defendant to the Mutual Fire Insurance Company, of Chicago for policies of insurance against loss by fire. A demurrer to the petition was sustained. Judgment was rendered for the defendant for costs, and the plaintiff appeals.
Affirmed.
Myron H. Beach, D. J. Schuyler, and C. W. Green-field for appellant.
The plaintiff may maintain the suit, although suing in the capacity of a foreign receiver.
Runk v St. John, 29 Barb. 585; Sobernheimer v. Wheeler, 45 N.J.Eq. 614; Bidlack v. Mason, 26 N.J.Eq. 230; Comstock v. Frederickson, 51 Minn. 351; Lycoming F. Ins. Co. v. Wright, 55 Vt. 526; Merchants' Nat. Bank v. McLeod, 38 Ohio St. 174; Mowry v Crocker, 6 Wis. 326; Gilman v. Ketchman, 84 Wis. 60, 23 L. R. A. 52; Falk v. Janes, 49 N.J.Eq. 484; Re Waite, 99 N.Y. 433; Ragby v. Atlantic, M. & O. R. Co., 86 Pa. 291; Metzner v. Bauer, 98 Ind. 427; Woodward v. Brooks, 128 Ill. 222, 3 L. R. A. 702; Toronto General Trust Co. v. Chicago, B. & Q. R. Co., 123 N.Y. 37; Bacon v. Horne, 123 P. A. 452, 2 L. R. A. 355; Ayers v. Siebel, 82 Iowa 348; Parker v. Stoughton Mill Co., 91 Wis. 174.
The plaintiff is entitled to recover judgment for the full amount of the deposit notes.
Ill. Stat. chapter 73, 1 Starr & C. Stat. (Ill.) 1315; Taylor v. Port Jefferson Mill Co., 65 N.Y.S. R. 542.
The decree levying the assessment is conclusive against all members of the company, and cannot be attacked collaterally.
Great Western Teleg. Co. v. Gray, 122 Ill. 630; Ward v. Farwell, 97 Ill. 593; Hawkins v. Glenn, 131 U.S. 319, 33 (L. Ed.) 184; Glenn v. Liggett, 135 U.S. 533, 34 (L. Ed.) 264; Sanger v. Upton, 91 U.S. 56, 23 (L. Ed.) 220; Smith v. Hopkins, 10 Wash. 77.
Under the Federal Constitution and statutes the decree of the Illinois court levying the assessment is entitled to the same faith and credits in the courts of Iowa that are given the same in the state of Illinois.
Mills v. Duryee, 11 U.S. 7 Cranch, 481, 3 (L. Ed.) 411; Christmas v. Russell, 72 U.S. 5 Wall, 290, 18 (L. Ed.) 475; Green v. Van Buskirk, 74 U.S. 7 Wall. 139, 19 (L. Ed.) 109; Hanley v. Donoghue, 116 U.S. 4, 29 (L. Ed.) 537; Brown v. Parker, 28 Wis. 27; Cole v. Cunningham, 133 U.S. 111, 33 (L. Ed.) 541; Holt v. Johnson, 50 Mo.App. 373; Griggs v. Becker, 87 Wis. 313; Leep v. St. Louis I. M. & S. R. Co., 58 Ark. 407, 23 L. R. A. 264.
The policies are Illinois contracts, and governed by the laws of Illinois.
Lamb v. Bowser, 7 Biss. 315; Adams v. Lindsell, 1 Barn. & Ald., 681; Hamilton v. Lycoming Mut. Ins. Co., 5 Pa. 339; Hunt v. Higman, 70 Iowa 406; Hallock v. Commercial Ins. Co., 26 N.J.L. 268; Reliance Mut. Ins. Co. v. Sawyer, 160 Mass. 413.
Statutes abridging the right of contract are void.
Low v. Rees Printing Co., 41 Neb. 127, 24 L. R. A. 702; Re Eight Hour Law, 21 Colo. 29; Re House Bill No. 203, Id. 27; Com. v. Perry, 155 Mass. 117, 14 L. R. A. 325; Com. v. Potomska Mills Corp. (Mass.) (28 N.E. 1128); Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340.
Section 1144 of the Code of Iowa is void and unconstitutional, in so far as it provides that no foreign insurance company "shall directly or indirectly take risks" in said state of Iowa without first complying with the laws of said state, with reference to foreign insurance companies doing business in said state.
French v. People, 6 Colo.App. 311; Lamb v. Bowser, 7 Biss. 318, 372, and cases cited; Marine Insurance Co. v. St. Louis, I. M. & S. R. Co. (41 F. 643;) Hooper v. California, 155 U.S. 647 (39 L.Ed. 297).
If the liability of the member does not cease until all losses and expenses for which such member is liable are paid, then the relation between the member and the company does not cease, and is not changed until such liabilities are paid, although the policy may have been canceled.
Detroit Manufacturers Mutual Fire Insurance Co. v. Merrill, 101 Mich. 393; Ionia E. & B. Farmers Mutual Fire Insurance Co. v. Otto, 96 Mich. 558; Davis v. Sharpe, 2 West. L. Month. 40.
A. P. Barker for appellees.
The legal authority of a receiver is co-extensive only with the jurisdiction of the court appointing him.
High, Receivers (2d Ed. paragraph 47); Moreau v. Du Bellet, Tex. Civ. App. (27 S.W. 503); Fitzgerald v. Fitzgerald & M. Construction Co., 41 Neb. 406; Booth v. Clark, 58 U.S. 17 How. 322, 331 (15 L.Ed. 164, 167); Brighman v. Luddington, 12 Blatchf. 237; Ayres v. Siebel, 82 Iowa 347.
A receiver cannot sue or otherwise exercise his functions in a foreign jurisdiction whenever such acts would interfere with the policy established by law, in such foreign state.
Hurd v. Elizabeth, 41 N.J.L. 1.
It is, unquestionably, the policy of the laws of this state, as expressed by legislative enactment and construed by this court, to exclude from, in any manner, directly or indirectly, taking risks in this state, every foreign insurance company that has not complied with its laws, and to deny them the right to recover upon premium notes given by citizens of this state, in payment for insurance written in violation of such law.
McClain, Stat. 1707-1709; Seamans v. Zimmerman, 91 Iowa 363; Fred Miller Brewing Co. v. Council Bluffs Insurance Co., 95 Iowa 31 (63 N.W. 565).
Appellee does not concede that the order directing the receiver to make the assessment, is in the nature of an adjudication, and binding upon it, without notice and without day in court.
Biddle, Ins. section 929; High, Receivers, section 329.
Judgment cannot be obtained in the courts of this state, upon a note given by a citizen of this state, for the premium upon a policy of insurance written upon property in this state, by a foreign insurance company that has not complied with its laws, so as to be authorized to take risks therein.
Seamans v. Zimmerman, and Fred Miller Brewing Co. v. Council Bluffs Ins. Co., supra; Stewart v. Northampton Mut. Live Stock Ins. Co., 38 N.J.L. 436; Farrier v. New England Mort. Secur. Co., 88 Ala. 275; Pierce v. People, 106 Ill. 11 (46 Am. Rep. 683); Rose v. Kimberly & C. Co., 89 Wis. 545, 27 L. R. A. 556; Seamans v. Temple Co., 105 Mich. 400, 28 L. R. A. 430; Beeber v. Walton, 7 Houst. (Del.) 471.
The appointment of a receiver does not have the effect of changing the contractual relations existing between the original parties.
High, Receivers (2d Ed. paragraphs 204, 205).
The corporation being the mere creation of local law, can have no existence beyond the limits of the sovereignty, where created. Having no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows as a matter of course that such assent may be granted upon such terms and conditions as those states may think proper to impose.
Fred Miller Brewing Co. v. Council Bluffs Ins. Co., supra; Paul v. Virginia, 75 U.S. 8 Wall. 168 (19 L.Ed. 357); Pierce v. People, 106 Ill. 11 (46 Am. Rep. 683); Reno, Non-Residents, paragraphs 5, 6; Columbia F. Ins. Co. v. Kinyon, 37 N.J.L. 33; Biddle, Ins., section 85 et seq.
When defendant surrendered its policy and received back its notes, it ceased to be a member of the company.
Hyde v. Lynde, 4 N.Y. 395, 396; Tolford v. Church, 66 Mich. 431.
It appears from the averments of the petition that the Mutual Fire Insurance Company, of Chicago, was organized under the laws of the state of Illinois, and that the defendant is a corporation organized and doing business under the laws of this state. Applications were made by the defendant for insurance in said company, which applications were accepted and in part consideration for said insurance, the defendant executed and delivered to the said insurance company two premium notes, one for the sum of seven hundred and fifty dollars, and the other for five hundred and twenty-five dollars. These notes were promises to pay the said insurance company, such sums thereon, as the directors might from time to time order and assess to pay losses and the expenses of said company. The contracts of insurance were made, and the premium notes executed and delivered, on the eleventh day of April, 1889, and the insurance was for five years. The policies of insurance remained in force until the eleventh day of April, 1890, when they were surrendered to the insurance company, and canceled, and the premium notes were returned to the defendant. On the twelfth day of November, 1890, a suit in chancery was instituted in the circuit court of Cook county, Illinois, against the said fire insurance company, and on the twenty-first day of February, 1891, the plaintiff herein was appointed receiver of said company, and of its property and assets. Afterwards, and in July, 1891, an order was made by said circuit court, by which the receiver was directed to assess upon each of the members of said insurance company, sixty-five per cent. of the premium notes, and make demand therefor of the persons liable on said notes, and proceed to collect the same. Said order, or decree, further provided that, if any member or members of said company, failed or refused to pay the amount of the assessment for thirty days after notice and demand, the said receiver should then proceed to collect from such member, or members, the whole of their premium note, or notes. The defendant was notified of the assessment, and of the amount that it was required to pay under said decree, on each of its premium notes. Payment was refused, and this action was commenced to recover the whole amount of the premium notes, and judgment was demanded...
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Barker v. Lamb
...99 Iowa 26568 N.W. 686BARKERv.LAMB & SONS.Supreme Court of Iowa.Oct. 16, 1896 ... Appeal from district court, Clinton county; P. B. Wolfe, Judge.Action at law to recover upon two premium notes given by the defendant to the Mutual Fire Insurance Company of Chicago for policies of insurance against loss by fire. A demurrer to the ... ...