Globe Acc. Ins. Co. v. Reid

• Decision Date: 13 October 1897
• Citation: 47 N.E. 947,19 Ind.App. 203
• Parties: GLOBE ACC. INS. CO. v. REID.
• Court: Indiana Appellate Court

19 Ind.App. 203

47 N.E. 947

GLOBE ACC. INS. CO.

v.REID.¹

Appellate Court of Indiana.

Oct. 13, 1897.

Appeal from circuit court, Delaware county; George H. Koons, Judge.

Action by Maggie Reid against the Globe Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.

Ellis & Watterhouse and Chas. F. Coffin, for appellant. Ryan & Thompson, for appellee.

BLACK, J.

An action was brought against the appellant on a policy of insurance on the life of John A. Reid, by the appellee, Margaret Reid, his widow, as beneficiary; and judgment by default was rendered against the appellant on the 23d of September, 1895. It has been assigned as error that the court, when rendering judgment, had not jurisdiction of appellant. Another assignment is that the court erred in overruling appellant's motion to set aside and hold for naught the judgment and default and the summons and the service and the return thereof. The complaint alleged the appellant to be “a corporation organized under and pursuant to the laws of Indiana for the formation of life and accident insurance.” The policy sued on, as shown by the copy thereof filed with the complaint as an exhibit, was a policy of the “Globe Accident Insurance Company, Indianapolis, Indiana”; and in the body thereof there was mention of the home office at Indianapolis. The residence of the parties or the place where the contract was made was not otherwise shown by the complaint. The summons, dated September 12, 1895, and made returnable on the 23d day of the same month, the 19th day of the then presentterm, and also the sheriff's return thereon, are set forth in the transcript before us, the return showing that the summons came to hand on the day of its date, and that the sheriff served the writ “on the within-named defendant, Globe Accident Insurance Company, by reading the same to and in the hearing of Marshall C. Culver, agent of said company, and by giving him a true copy of this writ, he being the highest and only officer of said company found in my bailiwick. Dated September 12, 1895.” It is shown by a bill of exceptions that on the 26th day of September, 1895, the appellant filed its motion to set aside and hold for naught the judgment and default and the summons and the service and return thereof; the grounds stated in the motion being that the appellant is a domestic corporation, organized under and pursuant to the laws of this state providing for the incorporation of insurance companies; that the appellant's residence and only office at the commencement of the action, and all the time, are and have been in the city of Indianapolis, in Marion county, in this state; that the appellant had not then, and at the commencement of this action had not, any office or domicile in the county of Delaware, in this state; “that this action is not connected with, and does not grow out of, the business of any office or agency of defendant in said county of Delaware; that there has been no service of process in this action on any officer, director, or stockholder of defendant, or on any person on whom process against the defendant lawfully could be served; that there has been no appearance or waiver of process in this action, as shown by the record; wherefore defendant says this court had not jurisdiction of defendant when said judgment was rendered.” In support of this motion, the appellant filed the affidavits of Charles W. Oaks and Marshall C. Culver. The former swore that he was the secretary and manager of the appellant; that it was a corporation organized under and in accordance with the laws of the state of Indiana providing for the incorporation of insurance companies; that the residence and office of said company were in Indianapolis, Ind.; and that it had no other office, and at the time of the commencement of this action had no other office, for the transaction of its business, except the office located at Indianapolis. Marshall C. Culver, in his affidavit, said that the action “did not and does not grow out of, and is not and was not connected with, the business of any office or agency of said company located in the county of Delaware, in the state of Indiana; that the alleged issue of said policy and the alleged death of said John A. Reid are not matters growing out of or connected with the business of any office of said company located in said county of Delaware.” It was not sought to contradict the statement in the return that the person on whom it showed service was the appellant's agent in Delaware county, whatever might have been the effect of such an attempted contradiction.

Where some other provision is not made by statute, that of section 314, Rev. St. 1894 (section 312, Rev. St. 1881), for the commencement of the action in the county where the defendants or one of them has his usual place of residence, applies. The appellant bases its objection to the service of the summons upon section 310, Rev. St. 1894 (section 309, Horner's Rev. St.), which provides: “When a corporation, company or individual has an office or agency in any county for the transaction of business, any action growing out of, or connected with, the business of such office may be brought in the county where the office or agency is located, at the option of the plaintiff, as though the principal resided therein; and service upon any agent or clerk employed in the office or agency shall be sufficient service upon the principal; or process may be sent to any county and served upon the principal.” Our attention is called, on behalf of the appellee, to section 796 of the Civil Code of 1852 (2 Rev. St. 1852, p. 222; 2 Rev. St. 1876, p. 313), concerning which this court, in Railroad Co. v. Spellbring, 1 Ind. App. 167, 27 N. E. 239, held that, although it was omitted from the revision of 1881, it has never been repealed, and is still in full force. It provides: “Any action against a corporation may be brought in any county where the corporation has an office for the transaction of business, or any person resides upon whom process may be served against such corporation, unless otherwise provided in this act.” Reference has also been made in the argument for the appellee to the provisions of section 318, Rev. St. 1894, being section 57 of the Code of 1881, as amended in 1893, relating solely to service of process on corporations), that “the process against either a domestic or foreign corporation may be served on the president, presiding officer, chairman of the board of trustees, or other chief officer, or if its chief officer is not found in the county, then upon its cashier, treasurer, director, secretary, clerk, general or special agent,” etc. In the corresponding section of the Code of 1852, being section 36 thereof (2 Rev. St. 1852, p. 35; 2 Rev. St. 1876, p. 48), the statute provided for service of process against a corporation, and not, as in the Code of 1881, against “either a domestic or foreign corporation.” In Rauber v. Whitney, 125 Ind. 216, 25 N. E. 186, where the action was against nonresidents of this state who had a store in the county wherein the action was brought, and the cause of action grew out of, and was connected with, the business of the defendants in that county, and process was served on the agent of the defendants in that county, in charge of said business, it was held, under section 309, Rev. St. 1881 (section 310, Rev. St. 1894), supra, that the court had jurisdiction. In Insurance Co. v. Capehart, 108 Ind. 270, 8 N. E. 285, there was an application of the same section in an action against a domestic corporation. In Railroad Co. v. Haskell, 11 Ind. 301, it was said of section 310, supra (being section 30 of the Code of 1852), that it provides simply that the plaintiff may, in a given case, at his option, sue in the county where the cause of action arose, whether process can or cannot be served in that county; and that its purpose, thus pointed out, is not in conflict with the position that the plaintiff may, as provided in said section 796, institute his action in any county where the corporation “has an office or an agent upon whom process may be served.” In that case the action was brought in La Porte county, against a railroad corporation of this state, having its principal office and place of business in Floyd county; the plaintiff's claim not having grown out of, and not being connected with, the office or agency in La Porte county, the summons having been served on the defendant's agent in La Porte county. The supreme court, having expressed the opinion that said section 310 did not prevent the plaintiff from proceeding as provided in said section 796, referred to the statute (section 33, Code 1852; section 314, Rev. St. 1894; section 312, Rev. St. 1881) above mentioned, providing: “In all other cases the action shall be commenced in the county where the defendants, or some one of them, has his usual place of residence.” And the court said: “Even if this provision is at all applicable to railroad corporations, which is doubtful, it would not be an unfair construction to say that such corporations may be regarded as resident in each county in which they have an office or agency, or an officer or agent upon whom process may be served. This exposition gives entire effect to section 796, above quoted, and accords with at least one adjudicated case: Insurance Co. v. Routledge, 7 Ind. 25.” The case to which reference was thus made was an action against an insurance company of this state, having its principal office in Marion county. The action, being on a policy, was brought in Vigo county, and service of process was had on an agent of the corporation residing and doing business for it in Vigo county. It was said by the court: “As a general rule, actions against corporations may be instituted in any county where the corporation has an office for the transaction of business, or any person resides upon whom process against such...