Randall v. McClain, No. 17,174.

CourtSupreme Court of Nebraska
Writing for the CourtFAWCETT
Citation94 Neb. 487,143 N.W. 478
Decision Date17 October 1913
Docket NumberNo. 17,174.
PartiesRANDALL v. MCCLAIN ET AL.

94 Neb. 487
143 N.W. 478

RANDALL
v.
MCCLAIN ET AL.

No. 17,174.

Supreme Court of Nebraska.

Oct. 17, 1913.



Syllabus by the Court.

Record examined, and held, that the case at bar is ruled by McCall v. Bowen, 91 Neb. 241, 135 N. W. 1014, 40 L. R. A. (N. S.) 781.


Appeal from District Court, Lancaster County; Frost, Judge.

Action by John A. Randall, receiver of the Nebraska Mercantile Mutual Insurance Company, against W. H. McClain and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Sedgwick, J., dissenting.

[143 N.W. 478]

Stewart, Williams & Brown and Shepherd & Ripley, all of Lincoln, Baldrige, Debord & Fradenburg, of Omaha, J. C. Dort, of Pawnee City, A. D. McCandless, of Hemingford, P. W. Scott, of Imperial, L. E. Roach, of North Platte, Brown & Venrick, of Crete, and B. F. Hastings, of Grant, for appellants.

Burkett, Wilson & Brown, of Lincoln, for appellee.


FAWCETT, J.

The Nebraska Mercantile Mutual Insurance Company was organized under the laws of 1897, c. 45, and was doing business, at the time of its insolvency, under such statute, as amended by chapter 48, Laws 1903. In January, 1908, the company was adjudged insolvent, and plaintiff appointed receiver. October 27, 1909, plaintiff, as receiver, by direction of the court, filed his amended petition against defendant McClain and some 800 other defendants, residents of 70 different counties of the state. The action is based upon an assessment declared by the district court against the defendants upon their several contracts or certificates of membership, or policies as they are sometimes called, in the company. The suit is a suit in equity brought in the district court for Lancaster county, in which county some of the defendants resided. Service was had upon them, and a summons issued to each of the counties in the state where other defendants resided, where such defendants were duly served by the sheriffs of their respective counties. Some of the members of the company paid their assessments, and are not included in the suit. Some who were included made default, and judgments by default were entered against them. The appealing defendants appeared specially, and objected to the jurisdiction of the court over their persons, for the reason that they are residents of counties other than Lancaster, and were served with summons in the counties of their respective residences by the respective sheriffs thereof; that they are not jointly liable with any defendant of Lancaster county upon the causes of action set forth in the petition; and that no summons had been served upon them as required by law. Their special appearances being overruled, they then separately demurred upon the grounds: (1) That the court had no jurisdiction of the persons of defendants; (2) defect of parties defendant; (3) several causes of action improperly joined; and (4) that the petition does not state a cause of action. Their demurrers being overruled, they answered, some separately, and some joining with others of their county. In their answers they preserve the objections made in their special appearances, and add that the action was one for the recovery of money only, and the summons served contained no indorsement of amount for which judgment would be taken in case of default; that the respective claims against the defendants were several and not joint; that they could not be brought from the counties of their residences into Lancaster county to defend; that at the time of the alleged assessment there was nothing due from the defendants to the receiver; that no proper or legal assessment was made; that the contracts of insurance limited the liability of defendants to the amount of premium stated in the policy; that defendants are not members of the insurance company in the sense that they can be assessed for the liabilities of the company; that there is no multiplicity of suits; and that defendants were entitled to trial in the

[143 N.W. 479]

counties of their residences, and to a jury. The reply to each answer was a general denial. The decree was in favor of plaintiff upon every issue, and a large number of the defendants have appealed.

We deem it unnecessary to consider the various assignments in detail. Counsel for defendants rely largely upon Burke v. Scheer, 89 Neb. 80, 130 N. W. 962, 33 L. R. A. (N. S.) 1057, while counsel for plaintiff pin their faith to McCall v. Bowen, 91 Neb. 241, 135 N. W. 1014, 40 L. R. A. (N. S.) 781. We think this case is ruled by McCall v. Bowen, supra. In Burke v. Scheer, supra, the case was submitted upon a general demurrer in the petition. That case involved a...

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2 practice notes
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • 29 Mayo 1931
    ...brought by the receiver of a mutual insurance company to collect an assessment. To the same effect is the holding in Randall v. McClain, 94 Neb. 487, 143 N. W. 478. We content ourselves with a brief restatement of the rule, for a discussion of which we refer to Rogers v. Selleck, 117 Neb. 5......
  • Armstrong v. Bates, No. 17,334.
    • United States
    • Supreme Court of Nebraska
    • 17 Octubre 1913
    ...defendant has been filed in the district court. It describes the land on which the taxes are liens and states the amount thereof. It [143 N.W. 478]states that the petition contains a prayer that the land described may be decreed to be sold to satisfy such liens. It also contains the followi......
2 cases
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • 29 Mayo 1931
    ...brought by the receiver of a mutual insurance company to collect an assessment. To the same effect is the holding in Randall v. McClain, 94 Neb. 487, 143 N. W. 478. We content ourselves with a brief restatement of the rule, for a discussion of which we refer to Rogers v. Selleck, 117 Neb. 5......
  • Armstrong v. Bates, No. 17,334.
    • United States
    • Supreme Court of Nebraska
    • 17 Octubre 1913
    ...defendant has been filed in the district court. It describes the land on which the taxes are liens and states the amount thereof. It [143 N.W. 478]states that the petition contains a prayer that the land described may be decreed to be sold to satisfy such liens. It also contains the followi......

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