Haynes v. City Nat. Bank of Lawton

• Decision Date: 09 January 1912
• Docket Number: Case Number: 1353
• Citation: 30 Okla. 614,1912 OK 39,121 P. 182
• Parties: HAYNES, Admx., v. CITY NAT. BANK OF LAWTON et al.
• Court: Oklahoma Supreme Court

1912 OK 39

121 P. 182

30 Okla. 614

HAYNES, Admx., v. CITY NAT. BANK OF LAWTON et al.

Case Number: 1353

Supreme Court of Oklahoma

Decided: January 9, 1912

Syllabus

¶0 1. INSURANCE--Companies--Actions--Venue. An action against a nonresident insurance company is properly brought in the county of the plaintiff's residence.

2. PARTIES--Defendants--Interest in Controversy. Any person who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of settlement of the questions involved, may be made a party defendant.

3. SAME--Bringing in New Parties--Authority of Court. The court may determine any controversy between any parties before it, when it can be done without prejudicing the rights of others, or by saving their rights. When, however, this cannot be done without the presence of other parties, the court must order them brought in.

4. PROCESS--Domicile of Parties--Codefendants. Where a nonresident insurance company is sued in the county where the plaintiff resides, a summons may issue to any other county, against a defendant made a party after proper showing by order of court.

5. APPEARANCE -- Special Appearance -- "General Appearance." Whether an appearance is general or special does not depend upon the form of the pleading, but upon its substance. If a defendant invokes the judgment of the court upon any question, except that of the power of the court to hear and decide the cause, his appearance is general.

6. EXECUTORS AND ADMINISTRATORS--Claims Against Estate--Necessity for Presentation. In an action brought by the assignee of a life insurance policy to recover the amount of the policy due upon the death of the insured, the administratrix of the estate having been made a party upon application of the insurance company, the petition of plaintiff making no claim or demand against the estate, it is not necessary that the plaintiff's claim be first presented to the administratrix for allowance, and a petition failing to allege such presentation is not subject to demurrer by reason thereof.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Action by the City National Bank of Lawton against the New York Life Insurance Company and Sarah C. Haynes, impleaded as defendant. From the judgment, defendant Sarah C. Haynes, administratrix, brings error. Affirmed.

John H. Wright and Clarence E. Blinn, for plaintiff in error.

Louis Davis, for defendant in error City Nat. Bank.

Stevens & Myers, for defendant in error New York Life Ins. Co.

SHARP, C.

¶1 On November 17, 1908, defendant in error the City National Bank of Lawton, a banking corporation, brought an action in the district court of Comanche county against the New York Life Insurance Company to recover judgment on two life insurance policies issued on or about May 27, 1908, on the life of Edward P. Haynes. These policies were for $ 2,500 each, and were payable to the executors, administrators, or assigns, or to the duly designated beneficiary of the insured, and were, on May 30, 1908, assigned in writing to the City National Bank, at the time a creditor of the said Edward P. Haynes in a sum in excess of the face value of the two policies. The insured died August 25, 1908, and the bank notified said insurance company thereof, and thereafter made due proof of death and demanded payment to it as assignee, which was refused. The summons issued in Comanche county against the insurance company was directed to the sheriff of Oklahoma county, and served upon Richard R. Lee, cashier of its Oklahoma branch at Oklahoma City, and due return thereof made. The New York Life Insurance Company is and was a nonresident corporation. On December 18, 1908, the insurance company filed its answer and plea of interpleader admitting the execution and delivery of said life insurance policies; that the same were payable to the executors, administrators, or assigns of the insured, or to the designated beneficiary; the death of the insured; that there had been filed with the company a copy of the assignment of both policies to the bank; and that subsequent notice and proof of death were made in accordance with the terms and conditions of the policies. The insurance company further answered that one Sarah C. Haynes of Oklahoma City was the duly appointed and qualified administratrix of the estate of the deceased, and as such had made claim to the proceeds of said policies, having served notice on said company that she claimed the full amounts due thereunder. Said company further answered, setting up that it had no interest in the demands of either party to said fund, and that its sole desire in the premises was that all parties interested might be brought before the court and the liability of the company ascertained, that it might with safety pay the same to the party entitled thereto, that said administratrix was not only a proper, but a necessary, party defendant to a complete determination of the matters and things involved, as provided for by the statutes in such cases made and provided, and asked that the said administratrix be, by order of court, made a party defendant, and that summons issue to her directed to the sheriff of Oklahoma county, Okla., and that said company be permitted to deposit with the clerk of the court the proceeds of said policies, and that thereupon it be acquitted and discharged of all responsibility and liability to either party. On February 23, 1909, the court ordered the administratrix made a party defendant, and on which date summons was issued by the clerk of the district court of Comanche county, directed to the sheriff of Oklahoma county, in which was recited the order of the court making said administratrix a party defendant. This summons was served by the sheriff of Oklahoma county, February 27, 1909, and return thereof duly made.

¶2 On March 26, 1909, the administratrix filed in the district court of Comanche county the following motion, formal parts omitted:

"Comes now the above defendant, Sarah C. Haynes, administratrix, and appears specially in said cause and for this motion only, and hereby moves the court to quash and set aside the service of summons in the above entitled cause, for the following reasons, to wit: (1) Said court has no jurisdiction of the subject-matter of this action. (2) That the original jurisdiction in all such actions is in the county court, and not in the district court. (3) That said defendant is improperly joined and sued in said action. (4) That the said petition and cross-petition do not state a cause of action or state any reason why this defendant should be joined or made a party therein. (5) That the county court of Oklahoma county, prior to the filing of said suit, acquired jurisdiction of the property involved in this action. (6) That this defendant has no interest in the controversy between the plaintiff bank and the defendant insurance company. (7) That the court has not acquired any jurisdiction over this defendant. (8) That the said plaintiff cannot maintain suit against this defendant or any one else until its claim has been presented to the administratrix as provided by law. (9) There are several independent and different causes of action improperly joined."

¶3 On May 25, 1909, judgment was rendered in favor of the bank, and against the insurance company, the journal entry reciting that:

"All parties appeared by their attorneys, and that the court, having heard the evidence, found that, at the time of his death, said Edward P. Haynes was indebted to the bank in the sum of $ 5,888.47, no part of which had ever been paid, and that in order to pay said indebtedness said Haynes, being insolvent, made the two policies of life insurance heretofore described and at the same time assigned them to the bank."

¶4 That part of the judgment passing upon the motion of said Sarah C. Haynes, administratrix, is as follows:

"It is therefore ordered, adjudged, and decreed that the motion of Sarah C. Haynes to quash and set aside service in said cause be, and the same is hereby, overruled, to which ruling said movant, the said Sarah C. Haynes, excepts, and the exception is by the court allowed, and thereupon movant elected to stand upon her motion and refused to further plead."

¶5 To the action of the court in allowing the insurance company an attorney's fee of $ 100, to be paid out of the funds deposited, both the bank and movant excepted. The insurance company, however, has not appealed from this order, and that part of the judgment is not assigned as error by the administratrix. The errors assigned are: (1) That no action could be maintained by the bank on the policies of insurance; no claim having ever been presented to the administratrix for allowance. (2) The administratrix was improperly joined in the action. (3) The court had no jurisdiction of either the subject-matter or the parties defendant.

¶6 Counsel for plaintiff in error relies upon section 4255, Wilson's Rev. & Ann. St. 1903. Previous sections of the statutes fix the venue of various classes of actions. The foregoing section reads:

"Every other action must be brought in the county where the defendant or some one of the defendants reside or may be summoned."

¶7 Counsel, however, have apparently overlooked the act of April 28, 1908 (Sess. Laws 1907-08, p. 592, sec. 7), designating the counties in which a civil action may be brought, and which provides that:

"If the defendant be a foreign insurance company, the action may be brought in any county where the cause of action or any part thereof arose, or where the plaintiff resides, or where such company has an agent."

¶8 It was charged in the petition, and admitted in the answer, that defendant insurance company was a corporation, organized under the laws of New York. The corporate organization and existence of the bank, and its place of business at Lawton, Comanche county, were both alleged and admitted in the pleadings. It is...