O'Malley v. Life Ins. Co., No. 33862.
| Court | Missouri Supreme Court |
| Writing for the Court | Hays |
| Citation | 75 S.W.2d 837 |
| Decision Date | 26 October 1934 |
| Docket Number | No. 33862. |
| Parties | R. EMMETT O'MALLEY, Superintendent of Insurance Department, v. CONTINENTAL LIFE INSURANCE COMPANY, a Corporation, Appellant. |
v.
CONTINENTAL LIFE INSURANCE COMPANY, a Corporation, Appellant.
Appeal from Circuit Court of City of St. Louis. — Hon. ____, Judge.
MOTION TO DISMISS APPEAL DENIED.
[75 S.W.2d 838]
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.
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.
[1] 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...
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...note 12, 71 S.W.2d at 605. See Hayes v. Hayes, supra note 13, 252 S.W.2d at 327(2); O'Malley v. Continental Life Ins. Co, 335 Mo. 1115, 75 S.W.2d 837, 839(5); State ex rel. Emmons v. Hollenbeck, Mo.App., 394 S.W.2d 82, 87; State ex rel. Slinkard v. Grebe, Mo.App., 249 S.W.2d 468, 15 Practic......
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...such construction will defeat the manifest intention of the statutory provision. O'Malley v. Continental Life Ins. Co., 335 Mo. 1115, 75 S.W.2d 837; 82 C.J.S., Statutes, Sec. 329 b, p. 639. Whether the one-sixth limitation is too high or too low is a legislative matter and not for the For t......
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...intent in the enactment of the law is to be sought and effectuated.' O'Malley v. Continental Life Ins. Co. [1934], 335 Mo. 1115, 1119, 75 S.W.2d 837, "'In construing a statute the legislative intent must be kept in mind, if it may be ascertained, and the whole act or portions thereof as are......
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State ex rel. State Highway Commission v. Carlton, No. 8893
...note 12, 71 S.W.2d at 605. See Hayes v. Hayes, supra note 13, 252 S.W.2d at 327(2); O'Malley v. Continental Life Ins. Co, 335 Mo. 1115, 75 S.W.2d 837, 839(5); State ex rel. Emmons v. Hollenbeck, Mo.App., 394 S.W.2d 82, 87; State ex rel. Slinkard v. Grebe, Mo.App., 249 S.W.2d 468, 15 Practic......
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Listerman v. Day & Night Plumbing & Heating Service, Inc., No. 8314
...Power & Light Co., 336 Mo. 592, 595, 80 S.W.2d 691, 692, 101 A.L.R. 365; O'Malley v. Continental Life Ins. Co., 335 Mo. 1115, 75 S.W.2d 837, 839(2); In re Dugan's Estate, Mo.App., 309 S.W.2d 137, 9 V.A.M.R. Rule 73.01(b); V.A.M.S. Sec. 510.310(2); McCullough v. Newton, Mo., 348 S.W.2d 1......
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State ex rel. Spink v. Kemp, No. 44534
...such construction will defeat the manifest intention of the statutory provision. O'Malley v. Continental Life Ins. Co., 335 Mo. 1115, 75 S.W.2d 837; 82 C.J.S., Statutes, Sec. 329 b, p. 639. Whether the one-sixth limitation is too high or too low is a legislative matter and not for the For t......
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St. Louis Southwestern Ry. Co. v. Loeb, No. 46105
...intent in the enactment of the law is to be sought and effectuated.' O'Malley v. Continental Life Ins. Co. [1934], 335 Mo. 1115, 1119, 75 S.W.2d 837, "'In construing a statute the legislative intent must be kept in mind, if it may be ascertained, and the whole act or portions thereof a......