Comm'r of Ins. v. Commonwealth Mut. Liab. Ins. Co.

• Decision Date: 27 April 1937
• Citation: 8 N.E.2d 759,297 Mass. 219
• Parties: COMMISSIONER OF INSURANCE v. COMMONWEALTH MUT. LIABILITY INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 219

8 N.E.2d 759

COMMISSIONER OF INSURANCE

v.COMMONWEALTH MUT. LIABILITY INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 27, 1937.

Suit in equity by the Commissioner of Insurance against the Commonwealth Mutual Liability Insurance Company. From a decree for plaintiff, the defendant appeals.

Affirmed.Appeal from Supreme Judicial Court, Suffolk County.

S. Silverman and C. M. Goldman, both of Boston, for appellant.

C. F. Lovejoy, of Boston, for receivers.

RUGG, Chief Justice.

This suit in equity was brought by the plaintiff under G.L.(Ter.Ed.) c. 175, § 6, to enjoin the defendant from carrying on business, to appoint receivers and to order the liquidation of its affairs. The bill was filed on December 14, 1936. Subpoena was made returnable on the first Monday of January, 1937. The defendant was notified to appear on December 15, 1936, to show cause why an injunction should not be granted and a receiver be appointed as prayed for. Counsel entered appearance for the defendant on December 15, 1936. Under date of December 15, 1936, an order was made by a single justice that a decree be entered appointing three named persons as temporary receivers, each to give bond with surety in a specified sum. The decree appointing the temporary receivers, entered on December 16, 1936, recited that the case was argued by counsel. The case then by order in writing was ‘continued until Saturday, Dec. 26, 1936, at 10 A. M. for further hearing on the question of making them permanent receivers.’ The defendant filed an answer on December 22, 1936. An appropriate decree appointing permanent receivers was entered on December 26, 1936. The defendant appealed from that decree on December 31, 1936. That appeal presents the question to be decided.

The record consists of copies of the several papers to which reference has been made. There was no request for a finding of material facts and no such finding was filed voluntarily by the single justice. There is no report of evidence and no person was designated to make such report. G.L. (Ter.Ed.) c. 214, §§ 23, 24: ‘The only question open on such a record is whether the decree could have been entered on the pleadings. The entry of the decree imports a finding of every fact essential to the entry of the decree.’ Poll-Parrot Beauty Salons, Inc. v. Gilchrist Co. (Mass.) 6 N.E. (2d) 612;Levinson v. Connors, 269 Mass. 209, 210, 168 N.E. 736;Milne v. Walsh, 285 Mass. 151, 153, 188 N.E. 624;Moore v. Northampton Cooperative Bank, 288 Mass. 317, 192 N.E. 747. It is manifest that the decree in the case at bar could have been entered on the pleadings.

The defendant urges that there has been violation of G.L.(Ter.Ed.) c. 175, § 6, to the effect that in cases of this nature the ‘court may issue a temporary injunction forthwith and may after a full hearing make the injunction permanent and may appoint one or more receivers to take possession of the property and effects of the company and settle its affairs, subject to such rules and orders as the court may prescribe.’ The record fails to support this contention. The decree is complete in form and adapted to enjoin further prosecution of its business by the...