Burlington Ins. Co. v. Mortimer

• Decision Date: 09 February 1894
• Citation: 52 Kan. 784,35 P. 807
• Parties: THE BURLINGTON INSURANCE COMPANY v. W. W. MORTIMER
• Court: Kansas Supreme Court

35 P. 807

52 Kan. 784

THE BURLINGTON INSURANCE COMPANY v. W. W. MORTIMER

Supreme Court of Kansas

February 9, 1894

Error from Coffey District Court.

ACTION by the Burlington Insurance Company against Mortimer for an injunction. At the April term, 1890, judgment for the defendant. Plaintiff comes here. The opinion states the facts.

Judgment affirmed.

G. E Manchester, for plaintiff in error.

J. I Wolfe, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action to enjoin the enforcement of a judgment obtained before a justice of the peace by W. W. Mortimer against the Burlington Insurance Company. The company had insured several of his animals against lightning, and one of them having been killed, a recovery of $ 75.65 was had. An abstract of the judgment rendered by the justice of the peace was filed in the office of the clerk of the district court, and thereupon an execution was issued to the sheriff of the county, commanding him to seize the property of the company to satisfy the judgment. This proceeding was then begun, and at the trial it was shown that the only summons served upon the insurance company in the action before the justice of the peace was one served upon A. W. Hinds, who was the agent and chief officer of the company within Coffey county. It was also shown, that by the terms of the insurance policy upon which the judgment was obtained, the liability of the insurance company was limited to $ 50 on each animal of the kind described in the bill of particulars or claim made by Mortimer. Upon a demurrer to the evidence, the court held it to be insufficient to entitle the insurance company to the relief asked, and judgment was therefore given in favor of Mortimer.

The principal ground assigned for reversal is, that as no service was made upon the superintendent of insurance, no jurisdiction was obtained by the justice of the peace, and therefore the judgment is a nullity. The service was made in pursuance of § 14 of the justices' code, which is exactly the same as § 69 of the civil code, and reads as follows:

"When the defendant is an incorporated insurance company, and the action is brought in the county in which there is an agency thereof, the service may be upon the chief officer of such agency." (Gen. Stat. of 1889, P 4860.)

If this provision, which has been published in all editions of the General Statutes since 1868, still exists, the service was good, and the judgment based thereon is valid. It is contended that this section has been repealed, and that service must now be made upon the superintendent of insurance, as provided by § 41 of chapter 93 of the Laws of 1871, as amended by § 4 of chapter 112 of the Laws of 1875. (See Gen. Stat. of 1889, P 3354.) It is not pretended that there was any express repeal of the provision authorizing the service upon the chief officer of the agency of an insurance company in a county, but it is contended that the later provisions, creating an insurance department in the state and regulating the insurance companies doing business therein, cover the whole subject of the former, and was intended as a substitute for it. We are unable to agree with this contention. It is well settled that repeals by implication are not...