Continental Ins. Co. of New York v. Riggen

• Decision Date: 19 April 1897
• Citation: 31 Or. 336,48 P. 476
• Parties: CONTINENTAL INS. CO. OF NEW YORK v. RIGGEN et al.
• Court: Oregon Supreme Court

48 P. 476

31 Or. 336

CONTINENTAL INS. CO. OF NEW YORK v. RIGGEN et al.

Supreme Court of Oregon

April 19, 1897

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Action by the Continental Insurance Company of New York against S.B Riggen and another. There was judgment on a demurrer sustained to a plea in abatement, and defendants appeal. Affirmed.

This is a suit to foreclose a mortgage upon certain real estate in Multnomah county, executed and delivered to the plaintiff by the defendants as security for the payment of a balance due the plaintiff from defendant S.B. Riggen and one T.M. Riggen former agent of the company, for premiums on fire insurance business previously done in this state. The only defense is that the contract upon which the suit is brought is void because at the time of its execution the plaintiff was a fire insurance company organized and existing under the laws of the state of New York, and carrying on business in this state without first having complied with the provisions of sections 3276 and 3580 of Hill's Code, by executing and recording a power of attorney, appointing a resident agent, and maintaining a head or general office in the state under the charge of a general agent. The court below held this defense insufficient, and, the defendants declining to answer or plead further, a decree was entered in favor of plaintiff, as prayed for in the complaint, from which the defendants bring this appeal.

R.R. Duniway, for appellants.

J.C Leasure, for respondent.

BEAN J. (after stating the facts).

In 1864 the legislature passed an act to regulate and tax foreign insurance, banking, express, and exchange corporations or associations, in which it was provided that before doing business in the state, any of such corporations must deposit with the treasurer of the county in which its principal office or agency is maintained the sum of $50,000, in interest bearing bonds of the United States, as security for persons transacting business with such corporation in the state, and, in addition thereto, must execute and acknowledge a power of attorney appointing a resident agent or attorney, with authority to accept service of process for the corporation, and upon whom service could be made, and cause the same to be recorded in each county where it had a resident agent. Gen.Laws 1864, p. 745. This act was subsequently amended in some matters not material to any question presented at this time, and, as so amended, is published as chapter 24 of the Miscellaneous Laws of the compilation of 1872 by Deady and Lane. In 1887 (Laws 1887, p. 118), the legislature passed an act entitled "An act to regulate and license insurance business in the state of Oregon," being chapter 50 of Hill's Annotated Laws; and the principal question on this appeal is whether the latter act repealed by implication the provisions of the former, requiring a foreign fire insurance company, before transacting business in the state, to execute and record in each county where it has a resident agent a power of attorney appointing a resident and citizen of the state as its agent, upon whom service of summons may be made. Repeals by implication are never favored, and, when there are two acts upon the same subject, effect will be given to both, if possible; but when they are repugnant, so that both cannot stand, the latter, without any repealing...