Old Wayne Mut. Life Ass'n v. Flynn

Decision Date14 October 1903
PartiesOLD WAYNE MUT. LIFE ASS'N v. FLYNN.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Marion County; J. M. Leathers, Judge.

Action by Enos Flynn against the Old Wayne Mutual Life Association. From a judgment in favor of plaintiff, defendant appeals. Reversed.

See 66 N. E. 57.

C. E. Averill and McBride & Denny, for appellant. Hiram Teter, Benj. F. Watson, and H. W. Bullock, for appellee.

ROBY, J.

This action is founded upon a judgment alleged to have been rendered in favor of appellee and against appellant by the common pleas court of Lackawanna county, Pa. Whether the judgment is valid depends upon whether the Pennsylvania court is shown to have had jurisdiction of the person of appellant. The suit therein brought was one to recover upon a policy of insurance issued by appellant, an Indiana corporation, by its agents in Pennsylvania, to a citizen of that state, upon the life of another citizen thereof. The court is averred to have been one of record and of general jurisdiction as the name implies. The presumption therefore is that it laid jurisdiction of both the subject-matter and all the parties. Gates v. Newman, 18 Ind. App. 392, 46 N. E. 654;Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959. Such jurisdiction may be questioned in this state notwithstanding the record. The jurisdiction of a foreign court is always open to inquiry, and a court of another state in this respect is regarded as foreign. Pond v. Simmons, 17 Ind. App. 84, 45 N. E. 48, 46 N. E. 153;Grover, etc., Co. v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. 92, 34 L. Ed. 670. The distinction between collateral and direct attacks as applicable to judgments rendered in this state is not, therefore, of controlling importance. The presumption of jurisdiction does not arise when the record shows the facts upon which it depends, but the record will be taken as expressive of the entire truth. The same proposition applies to a pleading in which averments relative to jurisdictional facts are contained. Coan v. Clow, 83 Ind. 417; Galpin v. Page, supra; Pressley v. Harrison, 102 Ind. 14, 23, 1 N. E. 188. It is averred “that said writ was personally served on said defendant association by the proper officer having the writ for service, giving to S. W. McCulloch, deputy insurance commissioner of said commonwealth, at the office of the insurance commissioner of said commonwealth, a true attested copy of said writ and statement aforesaid, and making the contents known to him; the said McCulloch being legally authorized to receive and receipt said regular service as and for the insurance commissioner of said commonwealth, as the lawful representative and agent of said defendant association resident in said commonwealth for the purpose of receiving and receipting service of process, including the aforesaid writ, for said defendant association.” The sufficiency of the complaint and the validity of the judgment are asserted on the theory that service upon the deputy insurance commissioner was service upon his principal. The Pennsylvania statute “to establish an insurance department” was in part incorporated in appellee's complaint. Only one section thereof-the thirteenth-was so pleaded. Appellee asserts that by a different section the deputy insurance commissioner was empowered to...

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1 cases
  • Cunningham v. Universal Battery Division-Yardney Elec. Corp., DIVISION-YARDNEY
    • United States
    • Indiana Appellate Court
    • July 29, 1976
    ...of the foreign court. TR 9(E), supra. That jurisdiction is presumed if the court is of general jurisdiction. Old Wayne Mutual Life Asso. v. Flynn (1903) 31 Ind.App. 473, 68 N.E. 327. 2 The presumption of jurisdiction of the person inures to plaintiff's benefit unless rebutted by defendant. ......

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