Minchener v. Carroll

• Decision Date: 18 December 1902
• Citation: 135 Ala. 409,33 So. 168
• Parties: MINCHENER v. CARROLL.
• Court: Alabama Supreme Court

33 So. 168

135 Ala. 409

MINCHENER v. CARROLL.

Supreme Court of Alabama

December 18, 1902

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Petition for mandamus by Jos. Minchener, Sr., against J. S. Carroll as treasurer of the Alabama Mutual Fire Insurance Company, to compel respondent to pay a judgment against the company from a certain fund. From an order sustaining a demurrer to the petition, petitioner appeals. Affirmed.

The insurance company was authorized by its charter to set aside one-eighth of all premiums and assessments received by it as a reserve fund, to be invested in such bonds, notes mortgages, personal property, or real estate as the board of directors might determine; and the charter provided that no part of the principal should be used for any purpose except in settlement of claims against the corporation; the other assets, premiums, and assessments having been first exhausted. Said company immediately engaged in the business of writing fire insurance, and on the 24th day of November 1896, issued to Jos. Minchener, Sr., a fire insurance policy on certain property for the amount of $400, insuring it against loss by fire for three years from the date of the policy, and collected from him the premium thereon. On the 15th day of February, 1899, while said policy was in force said insured property was destroyed by fire, and the company was duly notified of the loss, but failed and refused to pay the same as it had agreed to do under the terms of the policy; whereupon Jos. Minchener, Sr., brought suit on the policy against the company, and on the 24th day of July 1900, recovered a judgment for $440.79 damages, and $25.70 costs of the suit, on which judgment an execution was regularly issued, and returned, "No property found," and said judgment is still in force and is unpaid. At the time said company engaged in the business of writing fire insurance, and during the time it was so engaged in said business, it set apart one-eighth of the premiums and assessments collected by it as a reserve fund, as provided in its charter; and said reserve fund was in force and existence at the time of the issuance of the policy to Jos. Minchener Sr., and at the time his loss was sustained thereunder, and amounted to about $3,000, but was never invested in bonds, notes, or other property, but remained in cash in the hands of its treasurer. J. S. Carroll was and is the treasurer of said company, and was and is the custodian of this fund,--likewise all other moneys belonging to the company. Said reserve fund has not been paid out in settlement of claims against the company, but is still in the hands of said treasurer, unless it has been paid out in a way not authorized by law. Said company has no other funds out of which to pay the judgment herein referred to, and has failed and refused to pay the same on demand. Said reserve fund had been established and was in full force and effect at the time of the issuance of said policy to Jos. Minchener, Sr., and at the time he sustained the loss thereunder. Demand was made on the board of directors for the payment of said judgment, and they failed and refused to pay it. Then demand was made on J. S. Carroll, as treasurer of said company had to pay said judgment out of said reserve fund, and he failed and refused to pay it. After the loss herein complained of, and after suit was brought for its recovery, said company ceased to do business under its charter, at which time its reserve fund amounted to about $3,000. Upon the failure and refusal to pay said judgment by the board of control and the treasurer, Jos. Minchener, Sr., applied to John P. Hubbard, judge of the Twelfth judicial circuit, for a writ of mandamus or other remedial writ, directed to J. S. Carroll, as treasurer of said company, to compel him to pay...