Great Western Life Assurance Co. v. State ex rel. Honan

• Decision Date: 17 October 1913
• Docket Number: 22,334
• Parties: Great Western Life Assurance Company v. State of Indiana, ex rel. Honan, Attorney-General
• Court: Indiana Supreme Court

102 N.E. 849

181 Ind. 28

Great Western Life Assurance Company v. State of Indiana, ex rel. Honan, Attorney-General

No. 22,334

Supreme Court of Indiana

October 17, 1913

Rehearing Denied January 13, 1914, Reported at: 181 Ind. 28 at 34.

From Superior Court of Marion County (88,520); John J. Rochford Judge.

Action by the State of Indiana, on the relation of Thomas M. Honan Attorney-General, against the Great Western Life Assurance Company. From a judgment for relator, the defendant appeals.

Reversed.

Ulric Z. Wiley, Korbly & New and J. W. Lindley, for appellant.

Thomas M. Honan, Attorney-General, James E. Deery, Leroy J. Keach and Henry Warrum, for appellee.

OPINION

Erwin, J.

This was a proceeding brought by the State, ex rel., Attorney-General, praying for the appointment of a receiver for appellant; to enjoin it from writing any insurance and from purchasing the assets of the Great Western Life Insurance Company; for an accounting between it and its shareholders; for the appointment of a temporary receiver; and for the dissolution of the corporation. To the petition filed by the relator, the appellant appeared specially and filed a plea in abatement, in which it questions the jurisdiction of the court over the subject-matter and also over the defendant. To this plea in abatement the court sustained a demurrer. The appellant then filed an answer in bar in two paragraphs; the first, a general denial; the second, to the effect that the defendant was a corporation, duly organized under an act of the General Assembly of the State of Indiana, approved February 10, 1899, and acts amendatory thereto; that its home and principal office was in Terre Haute, Vigo County, Indiana; that at the time of the commencement of this action, it did not have or maintain any office in Marion County; that it did not have any agent in said county; that at no time since the commencement of this action has it had an office in Marion County, or any agent residing therein; that on January 13, 1913, the circuit court of Vigo County had appointed a receiver for said company, in a suit duly brought by a judgment creditor of said company, which receiver had duly qualified, and had taken possession of all the assets of the said company; and as a part of said answer, filed therewith a certified copy of the judgment of the Vigo Circuit Court.

The sustaining of the demurrer of appellee to appellant's answer in abatement is the first question presented. The plea in abatement is as follows: (Omitting caption and verification) "Comes now the defendant in the above entitled cause by its attorneys, and enters its special appearance herein, for the express and sole purpose of pleading to the jurisdiction of the court, both over the subject-matter involved in the complaint herein, and the person of the defendant, and for its plea in abatement says: That the defendant is a domestic corporation, organized and existing under the provisions of the act of the General Assembly of the State of Indiana, approved February 10, 1899, and the amendatory acts thereto; that since the date of the defendant's incorporation, its principal, sole and only office is in the city of Terre Haute, Vigo County, Indiana, and that said defendant on the 11th day of October, 1912, and continuously from the date of its incorporation, to wit: On the day of -----, 1911, had and still has its legal residence in said Vigo County, Indiana; that as such corporation, the defendant did not have or maintain an office in Marion County, Indiana, on the 11th day of October, 1912, nor at any time prior thereto; that on the 11th day of October, 1912, and at no time prior thereto, did the defendant transact its general or any business in Marion County, Indiana; that on said 11th day of October, 1912, and at no time prior thereto, did the defendant keep or maintain any office for the transaction of its business in said Marion County, Indiana; that on the 11th day of October, 1912, and for more than two months prior thereto, the defendant had or maintained no agent or agency in said county for the transaction of any of its business. The defendant further avers that Daniel P. Roberts, upon whom summons and notice herein were served, was not at the time of such service the agent or representative of the defendant in Marion County, Indiana, and was not engaged in the transaction of any business for it in said county. The defendant further avers that Frank T. Dows, upon whom said summons and notice were served, was on the said 11th day of October, 1912, a director of defendant company, and that he resided in Marion County, Indiana, but that he was not the agent or representative of the defendant in the transaction of any of its business in Marion County, Indiana, and that he was not then engaged in the transaction of any of its business in said county. The defendant further avers that by reason of the foregoing facts, the Marion Superior Court has no jurisdiction over the person of the defendant, nor of the subject-matter involved in the complaint herein. Wherefore the defendant prays that the return to the summons and the notice herein to quash and that this action abate."

The question as to the right to bring this action in the Superior Court of Marion County must be tested by the statute in relation to the organization of domestic insurance companies approved February 10, 1899, and acts amendatory thereto. §§ 4678-4715 Burns 1908, Acts 1899 p. 30, Acts 1901 p. 321, Acts 1901 p. 374, Acts 1905 p. 181, Acts 1907 p. 567. Section 4691 Burns 1908, Acts 1903 p. 45, provides in what manner, in what court, and by whom, suits may be brought for the appointment of a receiver and to dissolve an insolvent life insurance company, and reads as follows: "If the auditor of state shall, at any time, find from any report, examination or otherwise, that the assets of any life insurance company organized or doing business under this act, are less than its liabilities, exclusive of capital stock, he may notify it to cease the issue of new policies, or the payment of dividends to stockholders or policy holders, or both, until the deficiency be made good; and he may, and if it appear to him that the assets of such company are less than three-fourths of its liabilities, exclusive of capital stock, he shall communicate the facts to the attorney-general, who shall, if by him deemed advisable, at once apply to...