Omalley v. Hankins
| Decision Date | 22 February 1935 |
| Docket Number | 26388 |
| Parties | OMALLEY v. HANKINS et al |
| Court | Indiana Supreme Court |
Action by Hazel Hankins and others against the Missouri State Life Insurance Company. An order was entered appointing receivers for defendant corporation, and defendant corporation appeals and R. Emmet O'Malley, Superintendent of the Insurance Department of the State of Missouri, was substituted as appellant.
Judgment reversed, with instructions.
Appeal from Superior Court, Marion County; Joseph R. williams judge.
C. C Wysong, Clinton H. Givan, and Thompson, Rabb & Stevenson, all of Indianapolis, for appellant.
Philip Lutz, Jr., of Boonville, and Chalmer Schlosser, Burke G. Slaymaker, and Miller, Miller & Jeffrey, all of Indianapolis, for appellees.
Appellees brought this action seeking the appointment of a receiver for the Missouri State Life Insurance Company, a corporation organized under the laws of the state of Missouri. Summons was issued and served on the Auditor of State, and on a representative of the company at its office in Indianapolis, returnable October 2, 1933. On September 30, 1933, before any pleadings were filed by the defendant, receivers were appointed upon evidence introduced by plaintiffs. The evidence consisted of a certified copy of the judgment and decree of the circuit court of the state of Missouri within and for the city of St. Louis, entered on the 28th day of August, 1933, as follows:
'R. Emmet O'Malley, Superintendent of the Insurance Department of the State of Missouri, v. Missouri State Life Insurance Company, a corporation.
'This cause coming on for hearing before the court this 28th day of August, 1933, upon plaintiff's verified petition, the Entry of Appearance and Answer of defendant, is heard by the Court upon the pleadings filed herein and upon the evidence and proof adduced, and the Court being fully advised in the premises doth find that the allegations of said plaintiff's petition are true; that defendant is insolvent; that its liabilities exceed its available assets, and that its further operation is hazardous to the public and to those holding its policies, and that plaintiff herein is entitled to the relief prayed for in his petition filed herein.
'Wherefore, the Court renders and enters its judgment herein declaring that the defendant Company is insolvent and in a hazardous condition.
'It is further ordered, adjudged and decreed that the Missouri State Life Insurance Company, its officers, agents, servants and employees, immediately deliver possession of all assets of said Company, including its books, papers and records to the said Superintendent of Insurance, and that said Company, its officers, agents, servants and employees are hereby permanently enjoined from the further prosecution of the business of said Company, or from interfering with the possession, administration and disposition of the assets of said company by the said Superintendent of Insurance.'
There was no specific evidence that the property of the company within the state of Indiana was in jeopardy or in danger of being lost or destroyed. Receivers were appointed, and bond fixed in the sum of $ 5,000, which was filed on the same day. On October 4, 1933, the Missouri State Life Insurance Company, through attorneys acting for it, prayed and was granted an appeal upon filing an appeal bond in the sum of $ 5,000, which was done. A part of the record brought here by certiorari shows that this bond is on file in the clerk's office, with the notation, followed by the name of the judge of said court, with a line through it and the words 'Judge of Marion Superior Court Room 2,' with a notation that the judge's name was stricken out in ink. It is shown that this bond, approved by the judge, was tendered and stamped filed in the clerk's office of the court, although it was not shown on the order book. On October 5, 1933, the day following the filing of this appeal bond, an entry was made as follows: 'The court on its own motion now increases the Receiver's Bond to $ 25,000.00.'
On October 9, 1933, nine days after the entering of the judgment, and five days after an appeal was prayed and granted, and the appeal bond filed, the judge entered an order, the pertinent part of which is that the court 'on its own motion sets aside the order heretofore issued granting appeal to the Supreme Court of Indiana, upon the filing of bond in the sum of Five Thousand Dollars ($ 5,000.00), and the court now further orders that said appeal be granted upon the filing of an appeal bond in the sum of Thirty Thousand Dollars ($ 30,000.00).' On the same day the court approved and signed the bill of exceptions and ordered it filed; and on October 10th, the last day for perfecting the appeal under the statute, a transcript of the record, with an assignment of errors, was filed in this court and docketed. On October 9th, after the court had set aside its order granting the appeal, the receivers undertook to take charge of the property of the company on the theory that their authority to do so was no longer suspended.
Section 1302, Burns' 1926, section 3-2603, Burns' 1933, provides that, in cases in which a receiver is appointed, the party aggrieved may, within ten days thereafter, appeal from the decision to this court, and that, upon the filing of an appeal bond with sufficient surety in the same sum as has been required of such receiver, the authority of the receiver shall be suspended until the final determination of the appeal. When the order fixing the appeal bond was made, and the bond filed and approved, the trial court was divested of jurisdiction, and the appeal filed here within ten days of the judgment is properly completed.
On the day the transcript was filed in this court appellant filed a petition for a writ of certiorari to bring up the appeal bond heretofore referred to. The writ was granted, and that part of the record is now here. On October 16, 1933, appellant filed in this court a petition asking that the receivers appointed below be enjoined from acting pending a determination of this appeal. On October 19, 1933, appellees moved to abate appellant's application for injunction, based upon the fact, which was made to appear, that on the 7th day of October, 1933, the circuit court of the city of St. Louis, in the state of Missouri, in the cause in which the judgment above referred to was rendered, entered an order and decree dissolving and terminating the Missouri State Life Insurance Company. On the same day, R. Emmet O'Malley, as Superintendent of the Insurance Department of the State of Missouri, petitioned to be substituted as appellant, and to this petition appellees appeared specially and answered. In support of the petition to be substituted, in was established that, with respect to insurance companies, such as the Missouri State Life Insurance Company, the statutes of the state of Missouri provide:
'Upon the rendition of a final judgment dissolving a company, or declaring it insolvent, all the assets of such company shall vest in fee simple and absolutely in the superintendent of the insurance department of this state, and his successor or successors in office, who shall hold and dispose of the same for the use and benefit of the creditors and policyholders of such company and such other persons as may be interested in such assets.
Mo. St. Ann. §§ 5947, 5948, pp. 4534, 4535.
On the 28th day of August, 1933, the judgment above referred to, as having been introduced in evidence below, was entered by the circuit court of the city of St. Louis, state of Missouri and on October 7, 1933, in the same cause of action, the following order was entered: 'It is ordered, adjudged and decreed by the court that the corporate entity of defendant, Missouri State Life Insurance Company, a corporation...
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