Donohue v. Southwestern Surety Ins. Co.

• Decision Date: 02 March 1920
• Docket Number: No. 21090.,21090.
• Citation: 281 Mo. 267,219 S.W. 930
• Parties: DONOHUE v. SOUTHWESTERN SURETY INS. CO.
• Court: Missouri Supreme Court

219 S.W. 930

281 Mo. 267

DONOHUE v. SOUTHWESTERN SURETY INS. CO.

No. 21090.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Action by W. G. Donohue against the Southwestern Surety Insurance Company, begun in justice court and appealed by defendant to circuit court. From a judgment of dismissal, plaintiff appealed to the Kansas City Court of Appeals (202 S. W. 272), and the cause was certified to the Supreme Court on the ground that the opinion and judgment sustaining the judgment of the circuit court was in conflict with a decision of the St. Louis Court of Appeals. Judgment of the circuit court reversed, and cause remanded for further proceedings.

R. H. Musser, of Plattsburg, for appellant. Frost & Frost, of Plattsburg, for respondent.

BROWN, C.

This cause comes to us upon the certificate of the Kansas City Court of Appeals that its opinion and judgment sustaining the judgment of the circuit court is in conflict with the opinion and judgment of the St. Louis Court of Appeals in Rodgers v. National Council, 172 Mo. App. 719, 155 S. W. 874.

The case is well stated in the opinion of the Kansas City Court of Appeals as follows:

"Plaintiff, on December 23, 1916, in a suit before a justice of the peace in Clinton county, obtained judgment for $124 against defendant upon a policy of accident insurance. The defendant is a foreign insurance company duly licensed to transact its business in Missouri, but having no local agent in Clinton county upon whom service could be had; and service was made upon the superintendent of insurance at Jefferson City, in Cole county. On the twentieth day from the rendition of judgment, defendant was allowed an appeal to the circuit court of Clinton county. The appeal was returnable to the April term, 1917; of said circuit court, and the justice promptly sent up the transcript and papers to that court.

"It seems that the appeal bond filed in the justice court was in the name of `the Southern Insurance Company,' as principal, instead of `the Southwestern Surety Insurance Company,' and that the notice of appeal that was given, as well as the affidavit for appeal, were made under the caption of the case entitled `W. G. Donohue v. Southern Surety Company.'

"At the April term plaintiff filed a motion to dismiss the appeal based on two grounds: (1) That no affidavit for appeal and no appeal bond had been filed by the defendant in the case; (2) that no appeal had been taken or allowed to said defendant within the time allowed by law. At the same time defendant filed a motion to have, the justice send up a correct transcript of record, and this was done. Upon its appearing that the appeal had been allowed by the justice to the Southwestern Surety Insurance Company, the court permitted the corrected transcript to be filed, and thereupon the defendant, by leave of court, filed a correct affidavit and appeal bond, and later the court permitted defendant, through its attorney, who made the affidavit and who was also the sole surety on the appeal bond, to amend same by inserting the word `Insurance' after the words `Southwestern Surety' and before the word `Company' in the defendant's name wherever the same appeared in said affidavit and bond.

"Plaintiff's motion to dismiss was then overruled. Thereupon the cause was called for trial, and, the plaintiff refusing to plead further, the court dismissed the case. Plaintiff then appealed."

Donohue v. Southwestern Surety Insurance Co., 202 S. W. 272.

1. The controlling question In this case, and the one upon which it has been certified to us by the Kansas City Court of Appeals, is whether or not a foreign insurance company, having no agent, office, or other place of business in the county in which the cause was originally tried before a justice of the peace, must take its appeal from the judgment of the justice within 10 days from the time of its rendition or has 20 days for that purpose. This depends entirely upon the question whether or not the insurance company is, for that purpose, a resident or nonresident of the county, within the meaning of the following provision of section 7568, Revised Statutes of 1909:

"The appeal must be made within ten days after the judgment was rendered; but if a nonresident of the county where the suit shall be instituted, the party shall, in all cases of appeal allowed by this article, have twenty days to make such appeal."

It is contended by the insurance company that it comes within the terms of the clause last quoted, and that therefore its appeal taken within 20 days was timely. There can be no doubt of the correctness of this proposition if the word "nonresident" is to be construed according to its literal meaning; but the appellant contends that, for the purpose of this appeal, the respondent acquire the status of residence by virtue of certain statutory provisions to which we will presently refer.

Foreign corporations generally are prohibited from transacting business as such in this state without complying with certain prerequisites and obtaining from the secretary of state a license therefor, and establish and maintaining an office for the transaction of their business in this state where legal service may be obtained upon them. R. S. 1909, § 7040. Foreign insurance companies doing business in this state, being under direct supervision of the insurance department, are required (Id. § 7042) to file with the superintendent of the insurance department a written instrument or power of attorney appointing and authorizing the superintendent of the insurance department to acknowledge or receive service of process issued from any court of record, justice of the peace, or inferior court, and upon whom such process may be served in all proceedings instituted against them. This last provision, it is contended, makes the foreign insurance company not only a resident of the state for all the purposes of any such legal proceeding, whether involving the service of legal process or not, but also a resident of each particular county as distinguished from all others. The plaintiff may leave his home, where the defendant insurance company stands waiting at his door, and seek his remedy wherever he may find an atmosphere favorable to his cause. As we have stated in Meyer v. Insurance Co., 184 Mo. loc. cit. 489, 88 S. W. 481:

"An individual can reside in only one county at a time, whereas the statute makes a foreign insurance company a resident of every county in the state for the purposes of a suit against it."

Assuming that this proposition correctly states the meaning of the statute under consideration in its application to the question of jurisdiction then before the court, we are still far from determining its application to the question in this case, which is whether the defendant, being already in court, was entitled to 20 days in which to make its appeal. It cannot be contended that the statute in question, without using the words, "resident" or "residence".in any form, or any; equivalent words, has made the insurance company a resident of each county in this state for all the purposes implied in the omitted word. The statute which authorizes process to be served on the insurance commissioner upon which the jurisdiction is founded in this ease (R. S. 1909, § 7398), also (Id. § 7399) gives jurisdiction, in cases where the defendant is a nonresident of the county in which the plaintiff resides, to a justice of the peace of any township in such county where he may be found, and where the defendant is a nonresident of the state, to any justice of the peace of any county in the state wherein defendant may be found. None of these statutes, by conferring jurisdiction over the nonresident, brings him into the county or state for any other purpose. So far as the time for taking his appeal is concerned, he remains a nonresident of the county still. The nonresident of the county who...