Benneson v. Bill

• Decision Date: 31 January 1872
• Parties: WILLIAM H. BENNESONv.WILLIAM A. BILL et al.
• Court: Illinois Supreme Court

62 Ill. 408

1872 WL 8061 (Ill.)

WILLIAM H. BENNESON

v.WILLIAM A. BILL et al.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams County; the Hon. JOSEPH SIBLEY, Judge, presiding.

Messrs. SKINNER & MARSH, for the appellant.

Mr. S. N. DAVIS, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This is an appeal from a decree in chancery in the Adams circuit court. The scope and object of the bill filed in the cause, was to compel the defendant, who had been appointed by a decree of that court, rendered at October term, 1869, receiver of the Farmers and Merchants' Insurance Company, under which the assets of that company had been placed in his hands with authority to collect debts and pay liabilities of the company; to institute suits against the officers and stockholders of the company on account of their liability to the creditors of the company, and to apply the proceeds of any money he might make to the payment of the several judgments of complainants against the company, they alleging that they, severally, were insured in that company; that during the life of their policies the property insured was consumed by fire; that they, severally, recovered judgments on the policies against the company; that they caused executions to be issued thereon, all which were returned nulla bona. It is further alleged that this company did business under their charter in two departments--a stock and a mutual; that complainants' policies were in the stock department, and full premiums paid in cash; that they relied on the capital and assets of the stock department for payment of losses; that the capital mainly consisted of small per centages paid on stock and of stock notes of stockholders for portions of stock unpaid, secured on property.

A list of stockholders is then exhibited, with amount of stock to each, aggregating one hundred and three thousand three hundred dollars, and it is then alleged that upon faith of this, and of representations of the company of their ability to pay losses, complainants and many others insured in the company.

Combination and fraud are alleged, by the officers and members of the company in distributing the assets of the stock department among themselves, showing wherein, and the manner thereof, by which the capital and assets of the stock department were distributed among the members of the company, and the losses left unpaid, etc.

The proceedings to wind up the company instituted by the attorney general are then recited.

This statement sufficiently shows the nature of the proceeding. There is an allegation that complainants had requested defendant to bring suit for the recovery of the assets, etc., or to allow them to use his name for that purpose; the money to be applied to their judgments.

The prayer of the bill is that defendant be compelled to sue for the assets, and to appropriate the proceeds in payment of their judgments.

The court decreed accordingly; and further, that in case defendant failed to bring suit in ninety days, then the master in chancery do the same, and become possessed of the assets of the company, and apply the proceeds to complainants' judgments.

The decree was pro confesso, no answer or plea by defendant having been put in.

To reverse this decree the defendant has appealed, assigning the decree as error.

Appellant makes several important points on this record which require much and careful consideration, but to which appe...