German Bank v. Am. Fire Ins. Co.

• Decision Date: 17 October 1891
• Citation: 50 N.W. 53,83 Iowa 491
• Parties: GERMAN BANK v. AMERICAN FIRE INS. CO.
• Court: Iowa Supreme Court

83 Iowa 491

50 N.W. 53

GERMAN BANK

v.AMERICAN FIRE INS. CO.

Supreme Court of Iowa.

Oct. 17, 1891.

Appeal from district court, Dubuque county.

Action on a policy of insurance. The answer of defendant was in the nature of a plea in abatement. A demurrer thereto was sustained, and, defendant refusing to further plead, judgment was rendered in favor of plaintiff for the amount of its claim. Defendant appeals.Myron H. Beach, for appellant.

McCeney & O'Donnell, for appellee.

ROBINSON, J.

The facts admitted by the pleadings are substantially as follows: Defendant insured the Dubuque Mattress Company on certain property against loss by fire to the amount of $500. On the 1st day of April, 1889, and during the life of the policy, the property insured was destroyed by fire, and defendant thereby became liable on its policy for its full amount. On the next day the assured assigned to plaintiff its claim against defendant for the loss, and the latter was notified of the loss and the assignment. At the time in question plaintiff and the mattress company were Iowa corporations, engaged in business at Dubuque, and defendant was a corporation organized under the laws of the state of Pennsylvania, having its general agency at Philadelphia, and doing insurance business in Dubuque, and also in Illinois under a license issued by that state. On the 10th day of April, 1889, the firm of Glover & Willcombe, doing business in Chicago, commenced an action in the superior court of Cook county against the Dubuque Mattress Company. The action was aided by attachment, and defendant was served with a notice of garnishment as a debtor of the mattress company, and made answer under oath, as required by the laws of Illinois. In its answer it stated the facts in regard to the insurance and loss and the assignment to plaintiff. Glover & Willcombe thereupon made application to the court, under the laws of Illinois, for an order requiring the plaintiff to interplead, which was granted, and served. Plaintiff then appeared in the action, and, as the answer in this case alleges, “submitted itself, and its rights, claims, interests, and property, in and to the subject-matter of this action, to the jurisdiction of said superior court, and made and filed therein its plea and interpleader, setting forth its rights to and ownership of and interests in said subject-matter by virtue of the assignment thereof aforesaid.” The plaintiffs in that action denied the allegations contained in the answers of the garnishee and the bank, and the issues thus formed stood for trial in the superior court of Cook county when this action was commenced. That court had competent original jurisdiction, and the proceedings therein had were authorized by the statutes of the state of Illinois.

1. The ground of the demurrer is, in substance, that the facts set out in the answer fail to show that the Illinois court has jurisdiction of defendant, or of the subject-matter of this action. The theory upon which the demurrer was sustained appears to be that defendant and the Dubuque Mattress Company were, as to Illinois, foreign corporations; and as defendant is not shown to have had the money in controversy in its possession in that state, and as the transaction out of which the indebtedness arose was not in any way connected with any office or agency of defendant, jurisdiction was not acquired by the proceedings therein had. There are authorities which hold that process of garnishment served upon a non-resident of the state in which the action is pending, who is but temporarily within that state, is not effectual as an attachment; and the reason given for such holding is that property not in the state, in the hands of non-residents, and debts due from them, are not within the jurisdiction of the court, and therefore cannot be acted upon by it. Wright v. Railroad Co., (Neb.) 27 N. W. Rep. 94. “Mere choses in action are considered with reference to the trustee process as local, and not as following the person of the trustee wherever he may transiently be found.” Sawyer v. Thompson, 24 N. H. 514. In that case it was held that, if all the parties are inhabitants of another state, the garnishee cannot be charged where suit is brought, unless he has goods in his hands belonging to his principal, or has contracted to pay him money or deliver him goods in the state where the action is brought and the process of garnishment is served; and, in the absence of statutory enactment to the contrary, that is, perhaps, the general rule, especially when the defendant is not personally served within the state. Lawrence v. Smith, 45 N. H. 539; Green v. Bank, 25 Conn. 452; Gold v. Railroad Co., 1 Gray, 425;Tingley v. Bateman, 10 Mass. 343.

But we do not think the authorities cited are...