Livingston v. S. Sur. Co. of N.Y.
| Decision Date | 04 April 1933 |
| Docket Number | No. 29.,29. |
| Citation | 262 Mich. 438,247 N.W. 712 |
| Parties | LIVINGSTON, Insurance Com'r, v. SOUTHERN SURETY CO. OF NEW YORK et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Ingham County; Leland W. Carr, Judge.
Suit by Charles D. Livingston, Commissioner of Insurance, against the Southern Surety Company of New York, wherein the Equitable Trust Company, having been appointed by the Wayne Circuit Court as receiver for defendant, filed a petition to vacate the appointment of a receiver by the Ingham Circuit Court. From an order denying the petition, petitioner appeals.
Order vacated.
Argued before the Entire Bench.
Wm. Henry Gallagher, of Detroit, for appellant.
Paul W. Voorhies, Former Atty. Gen., Sid A. Erwin, Asst. Atty. Gen., Clark C. Coulter, of Detroit, Patrick H. O'Brien, Atty. Gen., and Charles F. Cummins, Asst. Atty. Gen., for plaintiff appellee.
On March 25, 1932, Bertha B. Cleavenger filed a judgment creditors' bill in the Wayne circuit court against the Southern Surety Company of New York in which she alleged that the company was insolvent and that on application of the superintendent of insurance in the state of New York a receiver had been appointed in that state to take over and administer its assets. She also alleged that the company had assets and property within the state of Michigan, and for the benefit of herself and other creditors prayed for the appointment of a receiver to take over such property and assets to sell the same and apply the proceeds in satisfaction of her judgment. There was no service of process on the company, though it had maintained an agent in the city of Detroit for that purpose. On March 25, 1932, an ex parte order was entered in the Wayne circuit court appointing Charles M. Becker receiver. On March 26, 1932, Charles D. Livingston, insurance commissioner for the state of Michigan, filed a petition to intervene and moved to vacate the order appointing Mr. Becker, receiver. Before final action was held on his petition, Mr. Livingston filed a bill in the Ingham county circuit court for the appointment of a receiver, and in compliance therewith an order was entered appointing Ralph M. Wade receiver to take possession of the business and assets of the insolvent company within the state of Michigan for the purpose of administering and liquidating the same under direction of the commissioner of insurance. Mr. Wade is a deputy commissioner. He qualified as receiver on the 29th day of March, 1932, and is in possession of the property and assets of the company. On the same day but subsequent to the appointment and qualification of Mr. Wade, the Wayne circuit court in the suit of Bertha B. Cleavenger appointed the Equitable Trust Company of Detroit receiver in the place of Mr. Becker. The Equitable Trust Company promptly qualified and thereupon filed a petition in the Ingham circuit court to vacate appointment of Mr. Wade. From an order denying the prayer of its petition, the Equitable Trust Company is prosecuting this appeal.
The question is whether, in view of the proceedings in the Wayne circuit court, the circuit court of Ingham county had jurisdiction to appoint a receiver.
It is first claimed by the plaintiff that the action of the Wayne circuit court appointing a receiver was an absolute nullity because there was no service of process upon the surety company. This claim has no merit. The surety company was a foreign corporation and there was no one upon whom service could be made. It is true that the company had maintained an agent in the city of Detroit for that purpose, but when the bill was filed in the Wayne circuit the company was not in existence. It had been dissolved by the New York court. With its dissolution passed the agency of its Detroit representative. U. S. Truck Company v. Pa. Surety Corporation, 259 Mich. 422, 243 N. W. 311.
But the right of a court of equity to appoint a...
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...exercise of sound judicial discretion." See also, Hochrein v. Gunther, 268 Mich. 682, 256 N.W. 594; Livingston v. Southern Surety Company of New York, 262 Mich. 438, 247 N.W. 712. In 75 C.J.S.Receivers § 49, at P. 705, it is "In most jurisdictions the courts have power to appoint a receiver......
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