Burke v. Scheer, No. 16,326.

CourtSupreme Court of Nebraska
Writing for the CourtFAWCETT
Citation89 Neb. 80,130 N.W. 962
PartiesBURKE v. SCHEER ET AL.
Decision Date08 April 1911
Docket NumberNo. 16,326.

89 Neb. 80
130 N.W. 962

BURKE
v.
SCHEER ET AL.

No. 16,326.

Supreme Court of Nebraska.

April 8, 1911.



Syllabus by the Court.

A single suit in equity cannot be maintained by the receiver of an insolvent mutual hail insurance company, organized under chapter 43, Comp. St. 1909, against all of the policy holders of such insolvent company, for the separate liability of each policy holder for unpaid assessments, whether levied by the directors of the company before insolvency, or by the court thereafter, on the ground that such single suit would prevent a multiplicity of actions at law; nor can such a suit be maintained on the ground that it is ancillary or auxiliary to the main insolvency proceeding; nor upon the ground that the money when collected would become part of a fund that would be distributed under the direction of the court, since no question is involved in which the defendants have a common interest, and the suit is merely an aggregation of separate actions at law, each involving separate issues and having no relation to each other, except that there is a common plaintiff, and in each of which the remedy at law is adequate, and is the remedy pointed out by the statutes governing such companies.

Nor can the receiver join in one action all policy holders or members of such company who are severally liable for individual unpaid assessments, those who reside in counties other than the county where the suit is brought, as well as those who reside within such county, and issue summons to such other counties to obtain service upon such nonresidents.



Additional Syllabus by Editorial Staff.

Comp. St. 1909, c. 43, § 121, provides that mutual hail insurance companies may issue policies on growing crops, insuring against damage by hail, and that the liability of members may be limited by the by-laws, provided that, if the total amount collected in any year shall be insufficient to pay all losses and expenses for that year, the persons sustaining losses shall receive their proportion of the funds realized from the assessment, in full satisfaction of their losses, and no member shall be required to pay more than the amount of his obligation. Held, that the statute fixes the maximum liability, and the mere fact that no by-laws are adopted, fixing such liability, does not render the liability unlimited, so that each member would be personally liable for all the debts of the company.


Appeal from District Court, Lancaster County; Cornish, Judge.

Action by Frank C. Burke, receiver of the Mutual Hail Insurance Society of Nebraska, against R. Scheer and others. Demurrer to the answer was sustained, and defendant George Sporl appeals. Reversed and remanded, with directions.

[130 N.W. 962]

G. F. Rose and Hainer & Smith, for appellant.

E. P. Holmes, for appellee.


FAWCETT, J.

The Mutual Hail Insurance Society, a corporation organized under the provisions of “An act to authorize the organization of Mutual Hail Insurance Companies” (Comp. St. 1909, c. 43), which, for the sake of brevity, will be designated the company, was, on February 19, 1908, by the district court of Lancaster county, adjudged insolvent, and plaintiff was appointed receiver. The court found the liabilities of the company to be $13,277.95. There being no funds in the hands of the receiver with which to pay these liabilities, the court made an assessment upon the policy holders of the company, 254 in number, and residing in many different counties, of $1.25 per acre for the number of acres covered by their several policies. The receiver was then instructed to bring suit against all of the policy holders. Only three of the policy holders were residents of Lancaster county. The receiver brought this suit in the district court of Lancaster county against all of the 254 policy holders, and had summons directed to the sheriff of each of the outside counties where any of the policy holders

[130 N.W. 963]

resided. The defendant, George Sporl, for a separate answer alleged that, at the time of the commencement of this action and for a long time prior thereto and ever since, he was and has been a resident of Nance county; that the only defendants in this suit residing within the county of Lancaster at the time of the commencement thereof were Charles Newman, J. W. Jacoby, and G. M. Coffman; that the summons for the answering defendant was issued by the clerk of the district court of Lancaster county, directed to the sheriff of Nance county, and by said sheriff served upon said defendant in said Nance county; that no other service was made upon him, and that he has made no voluntary appearance in said cause; that the petition does not set forth any joint liability against the answering...

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14 practice notes
  • Smith v. Abbate
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 13, 1961
    ...not think that the principle involved would be changed by the mere fact that the defendants are numerous * * *." See also Burke v. Scheer, 89 Neb. 80, 130 N.W. 962, 33 L.R.A.,N.S., 1057; 29 Am.Jur. Consequently, there is no longer, if there ever was, any "common and undivided interest" amon......
  • Rogers v. Selleck, No. 26342.
    • United States
    • Supreme Court of Nebraska
    • November 10, 1928
    ...creditor for the benefit of all the creditors, or by the receiver, against all the stockholders. Dicta to the contrary in Burke v. Scheer, 89 Neb. 80, 130 N. W. 962, 33 L. R. A. (N. S.) 1057, and in Dickinson v. Kline, 96 Neb. 435, 148 N. W. 141, disapproved. Appeal from District Court, Mor......
  • Bonde v. Stern, No. 6879.
    • United States
    • North Dakota Supreme Court
    • April 27, 1944
    ...App.Rep. 175, 36 N.E.2d 170. See, also, Rogers v. Boston Club et al., 205 Mass. 261, 91 N.E. 321, 28 L.R.A.,N.S., 743; Burke v. Scheer, 89 Neb. 80, 130 N.W. 962, 33 L.R.A., N.S., 1057; Kelley v. Gill, 245 U.S. 116, 38 S.Ct. 38, 62 L.Ed. 185;Van Auken v. Dammeier, 27 Or. 150, 40 P. 89. The r......
  • Burton v. School Dist. No. 19, 1858
    • United States
    • United States State Supreme Court of Wyoming
    • December 11, 1934
    ...on contract. Dwinnell v. Felt, (Minn.) 95 N.W. 579; Federal Union Company v. Flemister, (Ark.) 130 S.W. 574; Burke v. Scheer, (Nebr.) 130 N.W. 962; Detroit Company v. Merrill, (Mich.) 59 N.W. 661; Coombes v. Getz, 285 U.S. 434. The premium is not left to the arbitrary determination of the c......
  • Request a trial to view additional results
14 cases
  • Smith v. Abbate
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 13, 1961
    ...not think that the principle involved would be changed by the mere fact that the defendants are numerous * * *." See also Burke v. Scheer, 89 Neb. 80, 130 N.W. 962, 33 L.R.A.,N.S., 1057; 29 Am.Jur. Consequently, there is no longer, if there ever was, any "common and undivided interest" amon......
  • Rogers v. Selleck, No. 26342.
    • United States
    • Supreme Court of Nebraska
    • November 10, 1928
    ...creditor for the benefit of all the creditors, or by the receiver, against all the stockholders. Dicta to the contrary in Burke v. Scheer, 89 Neb. 80, 130 N. W. 962, 33 L. R. A. (N. S.) 1057, and in Dickinson v. Kline, 96 Neb. 435, 148 N. W. 141, disapproved. Appeal from District Court, Mor......
  • Bonde v. Stern, No. 6879.
    • United States
    • North Dakota Supreme Court
    • April 27, 1944
    ...App.Rep. 175, 36 N.E.2d 170. See, also, Rogers v. Boston Club et al., 205 Mass. 261, 91 N.E. 321, 28 L.R.A.,N.S., 743; Burke v. Scheer, 89 Neb. 80, 130 N.W. 962, 33 L.R.A., N.S., 1057; Kelley v. Gill, 245 U.S. 116, 38 S.Ct. 38, 62 L.Ed. 185;Van Auken v. Dammeier, 27 Or. 150, 40 P. 89. The r......
  • Burton v. School Dist. No. 19, 1858
    • United States
    • United States State Supreme Court of Wyoming
    • December 11, 1934
    ...on contract. Dwinnell v. Felt, (Minn.) 95 N.W. 579; Federal Union Company v. Flemister, (Ark.) 130 S.W. 574; Burke v. Scheer, (Nebr.) 130 N.W. 962; Detroit Company v. Merrill, (Mich.) 59 N.W. 661; Coombes v. Getz, 285 U.S. 434. The premium is not left to the arbitrary determination of the c......
  • Request a trial to view additional results

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