Fisher v. Pacific Mut. Life Ins. Co.
| Decision Date | 13 November 1916 |
| Docket Number | 18100 |
| Citation | 72 So. 846,112 Miss. 30 |
| Court | Mississippi Supreme Court |
| Parties | FISHER v. PACIFIC MUT. LIFE INS. CO |
APPEAL from the circuit court of Pearl River county, HON. A. E WEATHERSBY, Judge.
Suit by Dr. J. B. Fisher against the Pacific Mutual Insurance Company. From a judgment for defendant, plaintiff appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
W. A Shipman, for appellant.
G. T Fitshugh, for appellee.
This is an appeal from a judgment of the circuit court of Pearl River county dismissing appellant's suit. The appellant, plaintiff in the court below, filed his suit against appellee, defendant there, seeking to recover as beneficiary in a life and accident insurance policy alleged to have been issued to the plaintiff's late wife whom the declaration avers died as a result of accidental injuries received while she was a passenger on a street car in Memphis, Tenn., in the year 1906.
The defendant filed two pleas in abatement. The first plea in abatement sets out that all the parties in interest resided in Tennessee or were doing business in Tennessee, and that the contract sued on was made in Tennessee; that the accident upon which the suit is based occurred in Tennessee; and that there is no outstanding obligation in the state of Mississippi. Wherefore the plea avers that service of process served on it in the manner provided by law for serving process on the insurance commissioner for nonresident insurance companies was not sufficient to subject the defendant in this case to the jurisdiction of the circuit court of Pearl River county. A demurrer was interposed to this plea, and was overruled. This was error, and that regardless of whether the summons served on the insurance commissioner was sufficient to bring the defendant into court or not, for the reason that under section 3946 of the Code of 1906 when appellee appeared for the purpose of pleading to the jurisdiction of the court it then and there entered its appearance for all purposes, and by such action was only entitled to a continuance of the suit to the next term of court upon its motion. I. C. R. R. Co. v. Swanson, 92 Miss. 485, 46 So. 83; Standard Oil Co. v. State, 107 Miss. 377, 65 So. 468.
The second plea in abatement alleged that the plaintiff since the commencement of this suit had been enjoined from its further prosecution by the chancery court of Shelby county, Tenn., the place where the plaintiff resided. This plea sets out that the plaintiff is a citizen of Shelby county, Tenn., was a citizen of said state and county when the policy in question was issued, and has resided there since that date, and that his wife, Mrs. Lula A. Fisher, to whom the policy in question was issued, was also a citizen of Shelby county, Tenn., at the time said policy was written, and continued to reside there until her death in 1906; that the defendant company, though a nonresident corporation, is permitted to do business in Shelby county, Tenn., and is engaged in business there and has been so engaged since said policy was issued; that a suit had been brought by the plaintiff in this case against this defendant on the same cause of action, and that the identical matter here in controversy has been litigated for about six years in the courts of Tennessee, and was in litigation there until the date of the beginning of the present suit when the plaintiff herein voluntarily dismissed his suit in Tennessee; and that this suit was brought to harass and annoy defendant and to extort a compromise, and the plea sought a dismissal on the ground that to permit the plaintiff to continue to prosecute the present suit while the injunction against him proceeding therein was still in force in his own state would be in violation of interstate comity. To this plea a demurrer was filed, putting in issue the legal sufficiency of the defense set up by the second plea in abatement. The demurrer was overruled by the court, and the plaintiff's suit dismissed.
The appellant urges in this case that he was not bound by the injunction issued against him by the chancery court of his own state restraining him from prosecuting this suit for the reason that no writ or other sort of process had been served on him with reference to said injunction. Appellant's demurrer, however, to the second plea in abatement admits the existence of the injunction against appellant, and whether the same had ever been served on him or not if he knew the injunction existed it was his duty to obey it, and if Dr Fisher did not know of the existence of the injunction until he filed his demurrer to the second plea of the appellee, which sets up same, he will be presumed to have had knowledge of same at least from the time he filed his demurrer to ...
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Sharp v. Learned
...... Mississippi in three cases: Fisher v. Pacific Mutual Life. Ins. Co. 112 Miss. 30, 72 So. ......
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Equitable Life Assur. Soc. of United States v. Gex' Estate
...if she otherwise had notion that the same had been issued. Section 449, Griffith's Mississippi Chancery Practice; Fisher v. Pacific Mutual Life Ins. Co., supra. The court had territorial jurisdiction of both Mrs. Gillin and the subject matter, and when she received notice of the restraining......
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Koehring Co. v. Hyde Const. Co.
...state against its citizens to prevent them from bringing suit in Mississippi to avoid the law of that state. Fisher v. Pacific Mut. Life Ins. Co., 112 Miss. 30, 72 So. 846; Equitable Life Assur. Soc. of the U. S. v. Gex' Estate, 184 Miss. 577, 186 So. 659. The injunctions discussed in these......
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James v. Grand Trunk Western R. Co., 34546
...Although such a foreign injunction was recognized on the grounds of comity by the Mississippi court in Fisher v. Pacific Mutual Life Ins. Co., 112 Miss. 30, 72 So. 846, cited by defendant, that decision was specifically rejected as authority by the court in the Bossung case, and has not had......