Boyd v. Royal Ins. Co.

• Decision Date: 13 December 1892
• Parties: BOYD v. ROYAL INS. CO.
• Court: North Carolina Supreme Court

16 S.E. 389

111 N.C. 372

BOYD v. ROYAL INS. CO.

Supreme Court of North Carolina

December 13, 1892

Appeal from superior court, Rockingham county; McIVER, Judge.

Action by A. J. Boyd, receiver, against the Royal Insurance Company on a policy of insurance. From a judgment for plaintiff defendant appeals. Reversed.

At the time of the commencement of this action, it was, by the public laws of the state of Virginia, enacted that a nonresident of said state, having estate or debts owing him within the county or corporation in which the writ is sued with a defendant residing therein, may be sued in attachment and any person who may be indebted to the said defendant may be likewise sued and garnished in the same action, and be required to pay to the plaintiff so much of what he may owe to the principal debtors as may be necessary to liquidate the indebtedness of the principal debtors to the plaintiff in the said suit.

In an action on a policy of insurance running to a partnership, the complaint alleged that plaintiff was receiver of the firm appointed by order of the court, with authority to reduce to possession, by suit or otherwise, all the assets of the firm. Defendant demurred on the ground that the members of the firm should have been joined as plaintiffs. Held, that the demurrer was properly overruled.

Geo. H. Snow and J. W. Hinsdale, for appellant.

J. H. Dillard and P. B. Johnston, for appellee.

BURWELL J.

This action was brought to recover of the defendant a sum of money alleged to be due from it on account of a policy of insurance issued on June 9, 1887, to the firm of H. Sampson & Co., the property covered by said policy having been destroyed by fire on November 7, 1887, as alleged in the complaint. In the first section of his complaint the plaintiff says that he is "receiver of H. Sampson & Co., composed of H. Sampson E. E. Richardson, and Cornelins Sampson, late partners, doing business as such under the name of H. Sampson & Co., and appointed such receiver by order of the superior court of Rockingham county in the case of the First National Bank of Winston and others against the said firm of H. Sampson & Co., with power and authority to receive and reduce into possession, by demand, suit, or otherwise, all the assets, estate, and choses in action of the said H. Sampson & Co." Neither the firm of H. Sampson & Co. nor any of its members are parties to this suit. The defendant demurred to the complaint, alleging two grounds: (1) That plaintiff had not legal capacity to sue; (2) that there was a defect of parties plaintiff, "in the omission of H. Sampson, E. E. Richardson, and Cornelins Sampson, late partners, trading as H. Sampson & Co." This demurrer was overruled, and the defendants excepted, and filed an answer, in the first section of which it denied the allegation of the first section of the complaint. So we are met at the outset by the question, has the plaintiff the right to maintain this action in his own name, without joining with himself the firm of H. Sampson & Co. or any member thereof? We think there was no error in overruling the demurrer; for, if the plaintiff was receiver of H. Sampson & Co., with all the powers alleged to belong to him in the first section of his complaint, he had capacity to sue, and H. Sampson & Co., in that event, were not necessary parties. Gray v. Lewis, 94 N.C. 396. But when the defendant denied that the plaintiff was receiver of H. Sampson & Co., with the powers he claimed, it was incumbent upon him to prove his authority to maintain this action before he could recover of the defendant what might be due under the terms of the policy of insurance. We have carefully examined the record to find under what authority he is acting, and can find none, except the following order: "First National Bank of Winston and others, plaintiffs, against Henry Sampson & Co. and others, defendants. At chambers at the courthouse in Wilkesboro, this 10th of March, 1888. In this action, brought to the next term of the superior court of Rockingham county, by consent of the parties, it is ordered by the court that Andrew J. Boyd, attorney at law, of Reidsville, N. C., do collect any insurance money due to the firm of H. Sampson & Co., as well as all notes, accounts, and choses in action due to said firm, and also that he sell all property belonging to the firm, except the real estate, and that he keep and hold the entire proceeds from said sources until the future order of the court; and by like consent it is ordered that the question of the continuance of the temporary injunction and the appointment of a receiver be continued, without prejudice, to the next term of Rockingham court, which will be in July next." (Approved by T. Ruffin, attorney for H. Sampson, and J. H. Dillars, attorney for E. E. Richardson, and signed by WALTER CLARK, judge presiding.) The plaintiff himself testified as follows in regard to this matter: "Question. Please state whether or not the parties constituting the firm of H. Sampson & Co. had or had not constituted you receiver of all their assets before you were appointed by order of court, and to what end you were so appointed. (Defendant asks, 'Was the appointment in writing?' to which witness answers, 'It was not.' The defendant objects to question.) Answer. During the month of February,--as I recollect,--1888, the members of the firm differed among themselves as to what application should be made of the assets belonging to the firm as their funds came in, and no disposition was to be made of them without the concurrence of all the members. That arrangement was in force when the action in which I was appointed receiver was begun. Q. Were you or not constituted by the firm, not only to receive, but also to collect, the assets? A. I do not remember that anything was said about my making collections." This testimony was excluded by the referee, and is cited now only to show...