Brown v. British Dominions General Ins. Co.

• Decision Date: 26 June 1920
• Docket Number: No. 13663.,13663.
• Parties: BROWN v. BRITISH DOMINIONS GENERAL INS. CO., LIMITED, OF LONDON, ENGLAND.
• Court: Missouri Court of Appeals

228 S.W. 883

BROWN v. BRITISH DOMINIONS GENERAL INS. CO., LIMITED, OF LONDON, ENGLAND.

No. 13663.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Rehearing Denied October 7, 1920.

Error to Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by J. D. Brown against the British Dominions General Insurance Company, Limited, of London, England. Judgment for plaintiff, and defendant brings error. Affirmed.

Bruce Barnett, of Kansas City, for plaintiff in error.

J. G. Hutchison and J. D. Brown, both of Kansas City, for defendant in error.

TRIMBLE, J.

For convenience, and to avoid confusion, we shall call the parties plaintiff and defendant according to the position they occupied in the trial court, and not as defendant in error and plaintiff in error.

The litigation out of which this controversy grows was a suit on a policy of fire insurance on personal property, consisting of household and kitchen furniture, etc., while contained in a certain brick building at 919 Euclid avenue, Kansas City, Mo. The policy was issued June 22, 1917, insuring the property for $750, and on July 11, 1917, just 19 days after the insurance was effected, the property was totally destroyed by fire. Suit was brought on April 15, 1918, in the circuit court of Jackson county, Mo. Summons was on that date issued to the sheriff of Cole county, Mo., commanding him to summon "the British Dominions General Insurance Company, Limited, of London, England," to appear on the second Monday in May, 1918, and within three days file answer or plead. This summons was on the 16th day of April, 1918, served upon "Claud L. Clark, acting superintendent of the insurance department of the state of Missouri, there being a vacancy in the office of superintendent," etc. The defendant made no appearance nor filed any answer, and at the May term, on May 31, 1918, a jury was waived, the default of the defendant was noted, and the court, after hearing plaintiff's evidence, rendered judgment against defendant for $750 on the policy, with 10 per cent. or $75 damages and $75 attorney fee for vexatious refusal to pay. On September 27, 1918, at the regular September, 1918, term of said court, defendant, without limiting its appearance in any way, filed a motion to "set aside" said judgment. The grounds of this motion were that no summons was ever served upon the defendant nor upon any person authorized to be served upon the defendant; that the petition did not state facts sufficient to constitute a cause of action or sufficient to support any judgment. No allegation was made therein relative to whether defendant had a good defense to the cause of action. The motion was duly heard, considered, and overruled. Whereupon, after filing a motion to have the court "reconsider" the motion to set aside, which was also overruled, defendant sued out a writ of error and brought the case here.

We do not regard it as necessary for us to pass upon the sufficiency of the service of summons upon the acting superintendent of insurance, since the defendant, by entering its general...