O'Malley v. Continental Life Ins. Co.

• Decision Date: 26 October 1934
• Docket Number: 33862
• Parties: R. Emmett O'Malley, Superintendent of Insurance Department, v. Continental Life Insurance Company, a Corporation, Appellant
• Court: Missouri Supreme Court

75 S.W.2d 837

335 Mo. 1115

R. Emmett O'Malley, Superintendent of Insurance Department, v. Continental Life Insurance Company, a Corporation, Appellant

No. 33862

Supreme Court of Missouri

October 26, 1934

Appeal from Circuit Court of City of St. Louis.

Motion to dismiss appeal denied.

Albert D. Nortoni and Lowell L. Sparling for appellant.

A A. Ridge, James P. Aylward, Powell B. McHaney, James A Waechter and Frank P. Aschemeyer for respondent.

Hays J. All concur, except Leedy, J., absent.

OPINION

HAYS

This is a motion filed by the Superintendent of the Insurance Department of the State to dismiss the appeal lodged in this court as taken by the appellant, Continental Life Insurance Company, a corporation, from final judgment or decree, rendered by the Circuit Court of the City of St. Louis in a proceeding instituted under the provisions of Article 10, Chapter XXXVII of the Revised Statutes of 1929, as amended by Laws of 1933-34, Extra Session, pages 65-71, relating to the liquidation of life insurance companies.

The judgment was rendered on May 25, 1934. The company's motion for a new trial was filed and overruled on May 28. On the next day, May 29, affidavit for appeal was filed and docket fee paid into the hands of the clerk, appeal duly granted, appeal bond given and approved, and appellant granted leave to file its bill of exceptions within ninety days. On June 2, there was forwarded by post a certified copy of the judgment and the order allowing the appeal, together with the docket fee, to the clerk of this court, who received the same and filed the papers in his office on June 4, 1934; one day late, since for the purposes of appeal the date of the judgment is to be reckoned from the granting of the appeal as the starting date. [Walter v. Scofield, 167 Mo. 537, 67 S.W. 276.]

On this state of the record the respondent, conceiving that the appeal was not perfected within the time prescribed by law, raises that question by its motion to dismiss the appeal, and grounds the motion on the first proviso of Section 5945 of the Laws of 1933-34 (Ex. Sess.), at pages 67 and 68. The closing sentence of this section includes said proviso and reads:

"Such decree or judgment shall, for all purposes of an appeal, be considered a final judgment, and the defendant may appeal from the same as in other civil cases: Provided, the appeal be prayed for and perfected within five days after such judgment, and that the bond shall be for such an amount as the court may fix: and provided, that no appeal nor supersedeas bond shall operate as a dissolution of an injunction or judgment, if one has been issued."

This section was first enacted in 1879, as Section 6041, with provisos the same as they now appear in said Section 5945, Laws of 1933, and has been carried down through all subsequent decennial revisions of the statutes. So the provisos, in precisely the same language quoted above, have come down through more than a half century. Yet until now no question has been raised, so far as adjudicated cases disclose, with respect to the meaning of the language regarding appeal in proceedings of this kind, which are special and summary in their nature, brought pursuant to Section 5941, Laws of 1933, heard and determined under said Section 5945, and wholly governed by the latter, except as otherwise expressed therein. Subsequent Sections 5948, 5950, 5951, 5953 and 5954, all in Laws of 1933, considered collectively relate to disposition of the property of the company, to reinsurance or rehabilitation, and to the payment of expenses, etc., -- all to be effected under administrative orders made by the court from time to time after final judgment entered.

As indicative of the summary nature and the completeness of this statutory scheme or plan its distinguishing features may be briefly noted. Under the provisions of said Section 5941 the Superintendent of Insurance upon a discovery made by him from examination that any insurance company is in a condition specified in the law, or has committed certain acts specified, may institute proceedings in the circuit court to enjoin such company from further prosecution of its business, or for a judgment dissolving the company, and after the entry of such judgment or decree, to obtain orders for the liquidation or the rehabilitation of the company and administrative orders. Section 5945 in substance provides: Summons is to issue forthwith on the filing of the petition returnable in three days. On the return of the summons the case is required to be set down for hearing on some day not exceeding five days from the return day. All pleadings shall be made up and filed at or before said day of hearing; and the judge, without a jury and without unnecessary delay, shall proceed to hear and determine the cause, or on motion of the plaintiff refer the case to a referee to hear same and to report within ten days after the conclusion of the testimony, to which report exceptions, if any, must be filed within three days. The remainder of the section appears in the quoted provision, supra, concerning the judgment and appeal.

The particular portion of the latter with which we are concerned is the proviso, which in part reads: "Provided, the appeal be prayed for and perfected within five days after such judgment. . . ." The controversy raised by respondent's motion is upon the true meaning of the word "perfected" as contained in the proviso.

The first question for determination is whether, even if the five-day limit does apply to the lodgment of the transcript in this court -- and this is the ground of the motion -- such requirement is necessarily mandatory irrespective of conditions and circumstances and practical results, or whether it is directory.

It is not and could not well be disputed that the appeal was taken more than fifteen days and actually lodged here more than sixty days before our then next ensuing and now current September Term, is timely and properly returnable to this term under general Section 1027, Revised Statutes of 1929. It is to be observed that if the transcript had been filed within five days, instead of six as it was, the situation of the appeal, insofar as concerns its lodgment, prosecution, or progress in this court, is no different than if it had been filed one day earlier, since the special statute contained no suggestion looking to the advancement of the appeal on this court's docket. By representations made in the brief, and not disputed, the appellant moved promptly in ...