Cook v. Cas. Ass'n of Am.

• Decision Date: 29 March 1929
• Docket Number: No. 140.,140.
• Citation: 224 N.W. 341,246 Mich. 278
• Parties: COOK et al. v. CASUALTY ASS'N OF AMERICA et al.
• Court: Michigan Supreme Court

246 Mich. 278

224 N.W. 341

COOK et al.

v.CASUALTY ASS'N OF AMERICA et al.

No. 140.

Supreme Court of Michigan.

March 29, 1929.

Appeal from Circuit Court, Wayne County, in Chancery; Ernest A. O'Brien, Judge.

Judgment creditor's bill by Albert E. Cook and another, assignees of the Cook Motors Corporation, an Illinois corporation, in its own right and as assignee of the City Cartage Company, a Michigan corporation, against the Casualty Association of America, a Michigan reciprocal insurance association, and another. Decree for plaintiffs, and defendants appeal. Affirmed.

Argued before the Entire Bench.

Milburn & Semmes, of Detroit, for appellants.

Duncan C. McCrea and G. Sweetman Smith, both of Detroit, for appellees.

FEAD, J.

This is a judgment creditor's bill. The plaintiff in the original suit was Cook Motors Corporation, an Illinois corporation. After verdict, but before judgment, it assigned to plaintiffs its claim against defendant Casualty Association of America and all right to any judgment which might be recovered in the suit then pending in Wayne county. Plaintiffs here were not substituted as plaintiffs in that suit, but the cause proceeded to judgment in favor of Cook Motors Corporation as plaintiffs and was affirmed on review. 239 Mich. 362, 214 N. W. 212. Execution was issued in the name of the corporation and returned unsatisfied. When the assignment was made, Cook Motors Corporation was delinquent in filing its annual report and payment of its annual franchise fees, as required by the law of Illinois. Before execution was issued, an order of dissolution and forfeiture of franchise had been entered against it in an Illinois court.

Defendants' contention that the judgment was void because, plaintiffs here not having been substituted in the suit at law for the original plaintiff after assignment to them, the cause had not been prosecuted in the name of the real party in interest, as required by Comp. Laws 1915, § 12353, is a collateral attack upon the judgment and untenable. Williams v. Hubbard, 1 Mich. 446;Hall v. Dickinson, 204 Mich. 545, 170 N. W. 646; 34 C. J. 522; Bigelow v. Booth, 39 Mich. 622;Somers v. Losey, 48 Mich. 294, 12 N. W. 188; 34 C. J. 559; Blazewicz v. Weberski, 234 Mich. 431, 208 N. W. 452.

Their claim that the judgment was void because Cook Motors Corporation could not maintain suit during its delinquency in making annual reports and paying franchise fees is also a collateral attack. The point, if sound, was an affirmative defense in the suit at law, and should have been pleaded. Selznick Enterprises v. Harry I. Carson Productions, 202 Mich. 106, 167 N. W. 1010.

[4] Defendants further contend that the assignment was void because Cook Motors Corporation was so in default in filing its annual report and paying franchise fees, under section 128, c. 32, Smith-Hurd Illinois Revised Statutes of 1927, which prohibits transaction of business in the state and denies right of action during such delinquency. The statute does not in terms make the contract void nor suspend the powers of the corporation. The assignment of judgment became operative as soon as the judgment was recovered. 34 C. J. 637. The validity of an assignment of judgment is determined by the law of the state where the judgment is recovered. 5 C. J. 941; 34 C. J. 639; Vimont v. Chicago & Northwestern Ry. Co., 69 Iowa, 296, 22...