Derrick v. the Lamar Ins. Co..

• Decision Date: 30 September 1874
• Citation: 1874 WL 9151,74 Ill. 404
• Parties: MORRIS B. DERRICKv.THE LAMAR INSURANCE COMPANY.
• Court: Illinois Supreme Court

74 Ill. 404

1874 WL 9151 (Ill.)

MORRIS B. DERRICK

v.THE LAMAR INSURANCE COMPANY.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding.

Mr. F. C. INGALLS, for the appellant.

Messrs. SHUFELDT, BALL & WESTOVER, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

Edwin Burnham and Edward R. Burnham having before recovered a judgment against the Lamar Insurance Company, on the 23d day of October, 1872, filed their creditor's bill against the company and others, in the Superior Court of Cook county, to obtain satisfaction of the judgment.

Such proceedings were had upon the bill, that on the 23d of November, 1872, a receiver of the insurance company was appointed by the court below, vested with all the rights and property of the company, with power to prosecute and defend all suits, collect all moneys due the corporation, and enforce all liabilities of its stockholders On the 18th day of January, 1873, the court decreed that the receiver, out of the proceeds of collections made by him, pay the costs and expenses, and then pay to the complainants, and to all other creditors of the Lamar Insurance Company who should come in and file their claims under that decree, pro rata, or share and share alike, until all the demands against said company should be paid in full. Upon the report of the receiver, showing that there were divers claims against the company, and that he had no means of determining their amounts and validity, it was ordered by the court, May 1, 1873, that it be referred to the master to take proofs “of all claims against the Lamar Insurance Company which may have been or may hereafter be presented to the receiver,” and ascertain the amounts thereof, and whether the same are just and valid claims. Afterward, on October 31, 1873, the court ordered that all persons having claims against the Lamar Insurance Company or its property present and prove the same before the master within ninety days from the entry of the order, or be forever barred from sharing in the estate or assets of said company, and that the receiver publish notice of the limitation. The notice was duly published, and on December 3, 1873, the appellant, Morris B. Derrick, in pursuance of the order of the court, and within the time therein limited, presented to, and made proof of, before the master, a claim against the company for a loss by the fire of 1871, at Chicago, of $4,865 on property upon which he held a policy of insurance in the Lamar Insurance Company for $3,500.

On the 11th day of June, 1874, the master made report to the court of the proofs and his finding thereon, and that from the proofs he found against the claim of appellant, for the reason that previous to his filing his claim before the master, he had assigned his rights, under the policy of insurance and proof of loss, to John H. Wise. Exceptions were taken to the master's report, on hearing of which June 11, 1874, the court overruled the same, and adjudged that appellant's claim be rejected and disallowed, wherefrom this appeal was taken.

It is objected that the appellant cannot maintain the appeal, because he is not a party to the suit or to the record. The bill was not filed for the benefit of others as well as the complainants, and it is true that appellant was not a party to the suit, nor had he filed a petition to be made a party and to share in the benefits of the decree; yet, appellant was a party in interest, had rights to be...