Johnson v. American Surety Co.

• Decision Date: 19 December 1921
• Docket Number: No. 22666.,22666.
• Citation: 238 S.W. 500,292 Mo. 521
• Parties: JOHNSON v. AMERICAN SURETY CO. OF NEW YORK.
• Court: Missouri Supreme Court

238 S.W. 500

292 Mo. 521

JOHNSON v. AMERICAN SURETY CO. OF NEW YORK.

No. 22666.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Motion for Rehearing Overruled March 14, 1922.

Appeal from Circuit Court, Henry County; C. A. Calvird, Judge.

Action by Garland S. Johnson, as administrator of the estate of Nannie M. Johnson, deceased, against the American Surety Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed, with 10 per cent. damages.

This is an action on an appeal bond to recover against the defendant as surety there under the amount of a judgment rendered in favor of one Nannie M. Johnson and against the Hartford Life Insurance Company in the circuit court of Henry county. With respect to the facts leading up to the controversy in this case, we adopt with some slight modification appellant's statement.

In 1907 one Nannie M. Johnson instituted an action in the circuit court of Henry county, Mo., against the Hartford Life Insurance Company, to recover the sum of $5,000 under and on account of a certificate of membership or policy of insurance issued to and upon the life of her husband, James T. Johnson. The trial court rendered judgment against the Hartford Life Insurance Company in that action on May 12, 1909, and the company appealed. The bond in suit was given to supersede that judgment. The appeal first went to the Kansas City Court of Appeals, but was subsequently transferred to this court when one of the judges dissented, and held that the opinion rendered by the majority of that court was contrary to a prior decision of one of the other Courts of Appeals. Johnson V. Hartford Life Ins. Co., 166 Mo. App. 261, 148 S. W. 631. Pending the appeal in this court the plaintiff Nannie M. Johnson died, and the cause was revived in the name of the plaintiff administrator. Thereafter the judgment of the trial court was affirmed by this court. Johnson v. Hartford Life Ins. Co., 271 Mo. 562, 197 S. W. 132. The Hartford Life Insurance Company was thereafter allowed a writ of certiorari to the Supreme Court of the United States, but on final hearing that court dismissed the writ, on the ground that no constitutional question was involved. Hartford Life Ins. Co. v. Johnson, 249 U. S. 490, 39 Sup. Ct. 336, 63 L. Ed. 722. On June 18, 1919, the Hartford Life Insurance Company filed suit in the District Court of the United States for the Western Division of the Western Judicial District of Missouri against Garland S. Johnson, as administrator, to enjoin him from enforcing the judgment rendered by the circuit court of Henry county, Mo., in the action of Nannie M. Johnson v. Hartford Life Insurance Company, as aforesaid, and to enjoin the plaintiff from prosecuting or maintaining any action upon that judgment or on the appeal bond given to supersede that judgment. The grounds asserted in the bill for enjoining the plaintiff administrator from enforcing that judgment were in brief these:

That in the suit of Nannie M. Johnson against the Hartford Life Insurance Company the company defended on the grounds that the insured had failed to pay a certain assessment designated as "quarterly call No. 95," and that by reason of such failure the policy sued on had lapsed; that the court held, or permitted the jury to find, that the assessment was invalid, wherefore its nonpayment did not constitute a forfeiture under the policy; that plaintiff was enabled to obtain the judgment solely by reason of such holding; that, prior to the trial and the obtention of the judgment in the case of Nannie M. Johnson against the Hartford Life Insurance Company, and on October 19, 1906, a suit was begun in the superior court of New Haven county, in the state of Connecticut, against the company by Charles H. Dressler and others of its policy holders to which the insured, Johnson, was a party by representation; that on March 23, 1910, a decree was rendered therein, in which it was adjudicated that said quarterly call No. 95 had been made in accordance with the company's charter powers, and was valid; that said decree would have been an absolute bar to a recovery by Nannie M. Johnson in `her action against the company; and that, as it was not at the time of the trial of said cause available to the company as a defense, it would be inequitable and against good conscience to permit the enforcement of the judgment obtained therein.

It was further alleged in the bill that, in view of the holding in the Dressler Case, the proceeding in the circuit court of Henry county in the case of Nannie M. Johnson was to enforce a trust which was territorially beyond its jurisdiction, and the said judgment was therefore void for lack of jurisdiction of the subject-matter.

Upon the filing of the suit instituted in the federal court as aforesaid, the Hartford Life Insurance Company made application for a temporary injunction enjoining the plaintiff administrator from enforcing said judgment pending the final hearing of the cause. The district court refused to grant this temporary injunction, and from that order, and judgment denying its application for a temporary injunction, the Hartford Life Insurance Company appealed to the federal Court of Appeals for the Eighth Circuit. In the meantime, and on June 30, 1919, the present action was begun in the circuit court of Henry county, Mo. Shortly after the institution of the present action, the federal Court of Appeals, at the instance of the Hartford Life Insurance Company, made an order enjoining the plaintiff administrator from proceeding further with the present action pending the appeal of the Hartford Life Insurance Company from the order of the district court denying its motion for a temporary injunction. Thereafter the federal Court of Appeals affirmed the order of the trial court denying the preliminary injunction. Hartford Life Ins. Co. v. Johnson (C. C. A.) 268 Fed. 30....