Dep't of Ins. of Indiana v. Indiana Travelers Assur. Co., 17341.

• Decision Date: 19 January 1945
• Docket Number: No. 17341.,17341.
• Citation: 58 N.E.2d 761,115 Ind.App. 285
• Parties: DEPARTMENT OF INSURANCE OF INDIANA v. INDIANA TRAVELERS ASSUR. CO.
• Court: Indiana Appellate Court

115 Ind.App. 285

58 N.E.2d 761

DEPARTMENT OF INSURANCE OF INDIANA

v.INDIANA TRAVELERS ASSUR. CO.

No. 17341.

Appellate Court of Indiana, in Banc.

Jan. 19, 1945.

Appeal from Marion Circuit Court; Paul G. Davis, Special Judge.

Action by the Department of Insurance of the State of Indiana against the Indiana Travelers Assurance Company seeking appointment of a conservator to rehabilitate defendant insurance company. From a judgment for defendant, plaintiff appealed to the Supreme Court which transferred the cause to the Appellate Court, 57 N.E.2d 625.

Affirmed.James A. Emmert, Atty. Gen., Frank Hamilton, Deputy Atty. Gen., and Michael B. Reddington, of Indianapolis, for appellant.

Royse & Travis and Herbert J. Backer, all of Indianapolis, for appellee.

DRAPER, Chief Judge.

The appellant brought this action under the provisions of Chapter 162 of the Acts of 1935, being Burns' 1940 Replacement, § 39-3401 et seq., Baldwin's 1934, Supp. 1935, § 9496-1 et seq., seeking the appointment of a conservator to rehabilitate the appellee, a domestic insurance company.

A show cause order was duly issued under § 35 of the Act; appellee filed its response thereto, and upon hearing the court found for the appellee and entered a judgment denying the relief prayed for.

The appellant filed its motion for new trial alleging that (1) the finding of the court is not sustained by sufficient evidence and (2) is contrary to law. The motion was overruled and that ruling is here assigned as error.

This cause was originally appealed to the Supreme Court and was by that court transferred to this one. See Department of Insurance v. Indiana Travelers Assur. Co., 1944, 57 N.E.2d 625.

Under the negative finding of the court below, the appellant presents no question by an assignment of error to the effect that the finding or the decision of the court is not sustained by sufficient evidence. Wilson, Adm'x, v. Rollings et al., 1938, 214 Ind. 155, 14 N.E.2d 905;McKee v. Mutual Life Ins. Co. of New York, Ind.Sup. 1943, 51 N.E.2d 474.

The evidence in this case, however, shows beyond question and without dispute, and in fact it is admitted by appellee, that it formerly permitted irregularities and indulged in forbidden practices in some respects as alleged in the complaint, and appellant insists that a finding adverse to it is therefore contrary to law and calls for a reversal by this court. In this we cannot agree.

The effect of the order prayed for by appellant would be to confer upon it the right and to charge it with the duty of taking possession of the property of the company and of taking over, conducting and...