Jones v. The American Central Insurance Company

• Decision Date: 11 June 1910
• Docket Number: 16,557
• Parties: W. H. JONES, Appellee, v. THE AMERICAN CENTRAL INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

109 P. 1077

83 Kan. 44

W. H. JONES, Appellee, v. THE AMERICAN CENTRAL INSURANCE COMPANY, Appellant

No. 16,557

Supreme Court of Kansas

June 11, 1910

Decided July, 1910.

Appeal from Franklin district court.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. FOREIGN CORPORATIONS -- Service of Process. The various methods provided by statute for obtaining service of process on foreign corporations are cumulative. (Betterment Co. v. Reeves, 73 Kan. 107, 84 P. 560 syllabus.)

2. PRACTICE, DISTRICT COURT--Denial of Frivolous Motion to Quash Summons--Time of Trial--Discretion. Upon the denial of a motion to quash a summons and to set aside the service, if it appears to the court that the motion is not made in good faith or is frivolous, it is, and was before the adoption of the new code, within the discretion of the court to continue the case for the term, or to assign it for hearing at the same term, reasonable time being given to make up the issues. Held, in this case, the discretion was not abused.

3. PRACTICE, DISTRICT COURT-- Time to Produce Evidence. In the absence of both a motion for a continuance and an affidavit conforming substantially to the requirements of the statute, a party can not predicate error upon a lack of time to produce his evidence.

4. PRACTICE, DISTRICT COURT-- Change of Venue--Disqualification of the Judge. A motion in this action for a change of venue, on the ground of the disqualification of the judge, was filed, and was supported by an affidavit that a certain bank had indirectly a large interest (shown by other evidence to be at least $ 5000) in the subject matter of the action, and that the judge "is a director in said bank, actively engaged as such in its management, and acts as legal adviser for and advises the board of directors and officers of said bank concerning legal matters and interests of said bank, and for his services so rendered to said bank receives a stipulated annual salary, and that such relations have existed for a continuous period dating back to the time the subject matter of this suit first came into existence, and prior to the time the indebtedness of the said W. H. Jones to said bank was first made, and that the subject of said indebtedness, and the ability of said Jones to pay the same, and his means so to do, have been the subject of discussion by the directors of said bank with and in the presence of the judge, in connection with other business matters of said bank." There was no counter evidence, and no counter statement by the judge. Held, it was error to deny the motion.

Eugene S. Quinton, M. A. Fyke, E. L. Snider, and W. B. Pleasant, for the appellant.

F. M. Harris, and W. S. Jenks, for the appellee.

SMITH J. BENSON, J., not sitting.

OPINION

SMITH, J.:

The appellee filed his petition in the district court of Franklin county on February 28, 1909, and on the same day caused summons to be issued requiring the answer to be filed on or before March 25. The summons was served in Franklin county on Carey W. Porter, who was the agent that countersigned the policy sued on, and who was shown to be the superior officer of an agency of the company in the county.

On the answer day the appellant filed its motion to quash and set aside the service of summons, for the reason that it was not served upon the superintendent of insurance of the state, and evidence was introduced to show that Porter was not licensed or authorized by the superintendent of insurance as a managing officer or agent. Evidence was also offered to show that Porter was the superior officer of an agency of the company located in Franklin county.

The court denied the motion and set the case for hearing at the same term of court, twenty-two days thereafter. The appellant assigns the denial of the motion as error, and cites Insurance Co. v. Coverdale, 48 Kan. 446, 29 P. 682. In that case service was made upon the superintendent of insurance, but was directed to the sheriff. The decision was that the summons in such a case must be directed to the superintendent of insurance, and that it must allow the defendant forty days from the date of the summons to answer. It was not therein held or intimated that that is the only method of service.

In Betterment Co. v. Reeves, 73 Kan. 107, 84 P. 560, it was decided that the various methods provided by statute for service of summons upon a nonresident insurance corporation are cumulative. In Insurance Co. v. Mortimer, 52 Kan. 784, 35 P. 807, it was held that service upon the chief officer of an agency which the insurance company has in the county is good. (See, also, Insurance Co. v. National Bank, 58 Kan. 86, 89, 48 P. 592.) Where service is on an agent in the county, only twenty days for answer after the return day set in the summons is requisite. The motion to quash the summons and set aside the service was properly denied.

It is urged that the court erred in setting the case for trial at the same term of court at which the motion to quash the summons was denied. When an issue of law is raised in good faith, on or before the answer day, by filing a motion to set aside the service of summons, the defendant is not in default for answer, at least during the pendency of such motion.

The question of law raised by this motion had, as we have seen, been determined by this court about sixteen years before this motion was filed. The court evidently thought the eminent counsel for the insurance company knew this, and held the motion frivolous. Full twenty-two days were given to make up the issues and to prepare for trial. The issues were not in fact made up, however, by the filing of a reply ten days before the time set for trial, as required by section 313 of the code of 1909.

Courts are vested with much discretion in protecting the orderly progress of business therein pending, and under the facts of this case we can not say that such discretion was abused in assigning this case for hearing at the same term.

On the day next preceding that for which the case was set for trial, the appellant filed a motion for a change of venue, on the ground that Judge Smart was interested financially in the cause. An affidavit of E. S. Quinton, one of the attorneys for the appellant, was filed in support thereof. Omitting formal parts, the material averments are:

"And affiant further states that he is informed and believes that the said W. H. Jones, plaintiff in said cause of action, is largely indebted to various and many parties, and has not sufficient assets and resources to pay the same outside of a recovery upon the insurance policies sued on in this action, and others pending in this court, and that said W. H. Jones is indebted in a very large amount, so this affiant is informed, and believes, and therefore states the fact to be, in the sum of eight or nine thousand dollars to the First National Bank of Ottawa.

"And affiant further states that the Hon. C. A. Smart, judge of the district court of Franklin county, state of Kansas, is the vice president of said First National Bank of Ottawa, and is the owner of stock in said bank, and that the said W. H. Jones is relying upon a recovery in this action, and the other actions against the insurance companies pending in this court, to pay said indebtedness to said bank, and that said bank expects and hopes to receive its pay from a recovery in this and the other actions pending in this court."

The appellee thereupon filed his affidavit, in which he stated that the allegations in the affidavit of Quinton were not true or correct. The appellee's affidavit in part reads:

"He admits, however, that he is indebted to the First National Bank in the sum of $ 5000, evidenced by notes, most of which are not due, but not in a larger sum. He denies that he is dependent upon the insurance sued for in this action to pay the First National Bank; and he says that he has other assets and means wherewith to. pay all his indebtedness to the said First National Bank, independent of the result of this suit."

After detailing to some extent his resources the appellee further averred:

"He says that he is advised that the interest of the Hon. C. A. Smart in the said First National Bank is small or nominal, and he says that neither the said Hon. C. A. Smart nor the said First National Bank will be affected in any manner by the outcome of this suit."

After argument by counsel the court delivered the opinion and statement of facts. Omitting explanatory recitals as to his business interests in other matters, the judge said:

"The affidavit made by Mr. Quinton is substantially correct. In a bank with $ 100,000 capital, I am the owner of $ 1000 of the stock, and I am now and have been for a year or two one of its...