O'Malley v. Lamb

• Decision Date: 25 February 1938
• Docket Number: 35426
• Citation: O'Malley v. Lamb, 342 Mo. 171, 113 S.W.2d 810 (Mo. 1938)
• Parties: R. E. O'Malley, Superintendent of the Insurance Department of the State, Appellant, v. Gilbert Lamb
• Court: Missouri Supreme Court

113 S.W.2d 810

342 Mo. 171

R. E. O'Malley, Superintendent of the Insurance Department of the State, Appellant, v. Gilbert Lamb

No. 35426

Supreme Court of Missouri

February 25, 1938

Appeal from Osage Circuit Court; Hon. R. A. Breuer, Judge.

Affirmed.

Roy McKittrick, Attorney General, Drake Watson and James L. HornBostel, Assistant Attorneys General for appellant.

The Circuit Court of Osage County erred in rendering a judgment dismissing the cause. 67 C. J., pp. 214, 215, secs. 356, 358; Hazard v. Wason, 25 N.W. 465, 152 Mass. 268; State ex rel. Scotland County v. Bacon, 18 S.W. 19 107 Mo. 634; Penfield v. Vaughan, 69 S.W. 303, 169 Mo. 375; Congregation B'Nai Abraham v. Samuel Arky, 20 S.W.2d 899, 323 Mo. 788.

L H. Cook and H. P. Lauf for respondent.

Appeal should be dismissed for want of a sufficient abstract of the record. Rule 13, Sup. Ct.; Myrick v. Hamilton, 26 S.W.2d 1011; Wallace v. Libby, 231 Mo. 341; Barham v. Shelton, 221 Mo. 66; Pippert v. Cook, 203 S.W. 236; Ford v. Brokerage Co., 197 S.W. 339; St. Louis v. Young, 248 Mo. 347.

Douglas, J. All concur except Hays, C. J., absent.

OPINION

DOUGLAS

This is an action for money had and received for $ 29,329.35. In 1922 the then Superintendent of Insurance reduced insurance rates ten per cent. The companies brought a suit in the Circuit Court of Cole County to review the reduction order. During the period of the litigation, the companies collected the old rate under an agreement with the superintendent to return the ten per cent excess in event the reduction order was finally sustained. The reduction order was finally sustained by this court en banc on June 23, 1926. Aetna Insurance Company v. Hyde, 315 Mo. 113, 285 S.W. 651. Thereafter the companies made certain refunds to policyholders. The Superintendent of Insurance contending that the companies had not made complete refunds brought proceedings against them asking that they be required to pay into court, with interest, the excess premiums still in their hands unrefunded. The companies resisted this action. On final hearing thereof judgment was rendered against the companies for $ 2,748,265.62. The companies paid the amount of the judgment into the registry of the court and were finally discharged.

Thereafter the circuit court authorized Messrs. L. H. Cook and H. P Lauf, who had previously been appointed on December 14, 1934, as commissioners and custodians of the fund, to distribute the same to policyholders. It also appointed Mr. Gilbert Lamb, the respondent, as attorney for said commissioners and custodians.

Thereafter the court made certain allowance of fees out of the fund in court to Messrs. Cook, Lauf and Lamb. The Superintendent of Insurance resisted the making of such allowances and appealed therefrom to this court, contending that such allowances were illegal and void because made without jurisdiction. With this appeal pending and undetermined, the Superintendent of Insurance brought this suit against Mr. Lamb in the Circuit Court of Cole County to recover back $ 29,329.35 representing allowances of fees made to him out of the fund in question. It is apparent, without discussion, that the validity of the allowances to...