Rawlings v. American Oil Co

• Court: Mississippi Supreme Court
• Writing for the Court: Anderson, J.
• Citation: Rawlings v. American Oil Co, 161 So. 851, 173 Miss. 683 (Miss. 1935)
• Decision Date: 10 June 1935
• Docket Number: 31777
• Parties: RAWLINGS v. AMERICAN OIL CO

161 So. 851

173 Miss. 683

RAWLINGS v. AMERICAN OIL CO

No. 31777

Supreme Court of Mississippi

June 10, 1935

Division B

1 INSURANCE.

If declaration against foreign indemnity company was required to set out appointment by company of insurance commissioner of state as company's process agent, such fact was sufficiently alleged in declaration which set out that foreign company was qualified to do business in state and "subject to the process of this court by service of summons" on insurance commissioner of Mississippi (Code 1930, section 5165, par. 3).

2 JUDGMENT.

Proceeding to enforce a judgment is collateral to the judgment, and hence judgment cannot be attacked in such proceeding except for fraud in its procurement or invalidity on its face.

3 GARNISHMENT.

In garnishment proceeding against bank's receiver by judgment creditor of foreign indemnity company, it would be conclusively presumed that court rendering judgment had before it necessary proof of appointment of state insurance commissioner as company's process agent, where judgment recited that defendants were legally served with personal process and return on process in record showed service on insurance commissioner as process agent for company (Code 1930, section 5165, par. 3).

4 CORPORATIONS.

Statute providing that corporation whose charter has been annulled or has expired may be continued as body corporate for term of three years for purpose of suing and being sued and of enabling it to dispose of its assets held to apply to foreign corporations doing business in state, as well as to domestic corporations (Code 1930, sec. 4171).

5. CORPORATIONS.

Foreign corporation dissolved in domicile of its origin may be deemed alive in foreign state, so far as to afford remedies to its own citizens against property within its jurisdiction (Code 1930, secs. 4166, 4171).

6. CORPORATIONS.

Judgment rendered against road contractor and his foreign corporate surety held not void because when rendered surety had been dissolved and was in hands of receiver (Code 1930, secs. 4166, 4171).

7. SUBROGATION.

Where New York company was surety on bond indemnifying county and city against loss by failure of depository, when Louisiana company discharged depository's liability to county and city, either Louisiana company or New York company with which Louisiana company had agreement was subrogated to rights of county and city against depository.

8. JUDGMENT.

Where Louisiana company paid county and city losses sustained by reason of insolvency of their depository, under indemnity bond whereunder New York company was surety, and procured decree of federal court against receiver of depository establishing that New York company was entitled to salvage in hands of receiver by subrogation to rights of county and city, Louisiana company and those claiming under it held estopped to assert otherwise in garnishment proceeding by New York company's judgment creditor against receiver of depository.

9. JUDGMENT.

Judgments are conclusive evidence against both parties and privies.

10. RECEIVERS.

Mississippi receivers of Louisiana company bad no greater rights in funds in insolvent Mississippi bank than company, and hence such bank's receiver, who as receiver of another bank, purchased receivers' rights, had no greater right to such funds.

11. COURTS.

Words "court of competent jurisdiction" within statute providing that Comptroller administering affairs of insolvent national banks shall make ratable dividends of moneys paid over to him by receivers on all such claims as may have been proved to his satisfaction or adjudicated in court of competent jurisdiction are not confined to federal courts, but apply as well to state courts, and hence funds in hands of receiver of national bank were subject to writ of garnishment of state court (12 U.S.C. A., sec. 194).

HON. W. J. PACK, Judge.

APPEAL from circuit court of Jones county, HON. W. J. PACK, Judge.

Garnishment proceedings by the American Oil Company, which had received a judgment against E. E. Lovell and another, against A. F. Rawlings, receiver of the Commercial National Bank of Hattiesburg and the First National Bank of Gulfport. From a judgment sustaining the writ of garnishment, the receiver appeals. Affirmed.

Affirmed.

White & Morse, of Gulfport, Roberson & Cook, of Clarksdale, and Lotterhos & Travis, of Jackson, for appellant.

The trial court erred in overruling the motion to quash writ of garnishment.

The original judgment rendered against the New York Indemnity Company in favor of garnishee was void because at the time the judgment was entered, the New York Indemnity Company was dissolved and was legally dead.

Terry v. Robertson, 24 Miss. 192; National Surety Co. of New York v. Cobb, 66 F.2d 323; 1 Freeman on Judgment (5 Ed.), sec. 406, page 883.

Mere showing of service of summons on the State Insurance Commissioner, with no other process issued or served, or no certified copy of any instrument executed by foreign insurance company and required to be filed with the Insurance Commissioner, held insufficient to authorize default judgment against such foreign insurance company.

Watkins Machine & Foundry Works v. Cincinnati Rubber Co., 99 Miss. 610; Continental Casualty Co. v. Gilmer, 146 Miss. 22; National Surety Co. v. Board of Supervisors, 120 Miss. 706.

In the absence of a certified copy of an instrument constituting and appointing the insurance commissioner its true and lawful attorney, there is no way by which the court could judicially know that the commissioner was authorized to accept service for the insurance company.

Globe & Rutgers Fire Ins. Co. v. Sale, 107 Miss. 169.

The trial court erred in awarding judgment to garnishee American Oil Company under the facts shown in this record.

It has long been a settled law of this state that even though money stands in the bank in the name of some other person, the real or true owner could assert his ownership of the funds in a contest of a garnishment.

Brandon v. Interstate Life & Acc. Ins. Co. et al., 149 Miss. 808, 115 So. 888; National Bank v. King, 57 Pa. 202, 98 Am. Dec. 215; First National Bank v. Mason, 95 Pa. 113, 40 Am. Rep. 632; Hemphill v. Yerkes, 132 Pa. 545, 19 A. 342, 19 Am. St. Rep. 607; 3 R. C. L., sec. 158; Shuler v. Murphy, 91 Miss. 519, 44 So. 810; Foute v. Fairman, 48 Miss. 536.

The court below committed error in rendering judgment against garnishee.

Earle v. Penn, 44 L.Ed. 1146; Earle v. Conway, 44 L.Ed. 1149.

Hannah & Simrall, of Hattiesburg, and Welch & Cooper, of Laurel, for appellee.

A corporation, after its charter has expired or been annulled, may nevertheless be continued as a body corporate for the term of three years thereafter, for the purpose of suing and being sued and of enabling it to close up its concerns, to sell and convey property, and to divide the assets but not for the purposes of enabling it to carry on other corporate business. This provision, however, shall not extend to cases in which it may be necessary to appoint trustees on judgment of dissolution; but in such cases all suits shall be brought by or against the trustee in his representative capacity.

Section 4171, Code of 1930; Bates v. Miss. Industrial Gas Co., 173 Miss. 361, 161 So. 133.

Any corporation claiming existence under the laws of any other state or any other country foreign to the United States, found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are, whether the cause of action accrued in this state or not.

Sections 4166 and 4171, Code of 1930; State v. Edwards Hinds Lbr. Co., 106 Miss. 780, 64 So. 729; Scammon v. Metropolitan Trust Co., 42 N.E. 515; Hammond v. National Life, 69 N.Y.S. 585; James Co. v. Second Russian Ins. Co., 203 N.Y.S. 232; Clark v. Willard, 292 U.S. 112, 78 L.Ed. 1160.

The statutes and judicial decisions of the state of Mississippi have declared and adjudged that this citizen of the state of Mississippi had a right to subject this property to the satisfaction of the obligation assumed by the corporation.

It was wholly immaterial whether this petition actually recited that the surety company was qualified to do business in the state of Mississippi or not, and also whether or not the petition recited that George D. Riley was the process agent, because the law presumes that when the New York Indemnity Company became the surety on this contractor's bond, that the said New York Indemnity Company was qualified to do business in Mississippi.

The New York Indemnity Company could never qualify to do business in Mississippi, unless and until it appointed the Insurance Commissioner as process agent.

Section 5165, Code of 1930.

Even though the New York Indemnity Company had never in fact, executed a written instrument appointing the Insurance Commissioner as its process agent, the very act of becoming the surety on a public contract would automatically constitute the Insurance Commissioner as the process agent of this corporation.

Section 5165 of the Code requires insurance and indemnity companies to appoint two process agents. Paragraph three of this statute expressly fixes and determines that one of the process agents shall be the Insurance Commissioner. Paragraph four of this section permits the Insurance Commissioner to name some individual of its own choice.

Globe Ins. Co. v. Sayle, 107 Miss. 169, 65 So. 125; Fidelity & Casualty Co. of New York v. Cross, 127 Miss. 31, 89 So. 780; Great Southern Life Ins. Co. v Gomillian, 145. Miss. 314, 110 So. 770; Universal Life Ins. Co. v. Catchings, 152 So. 817; Fireman's Fund Ins. Co. v. Cole, 152 So. 872; McIntosh v. Munson Road Mchy. Co., 145 So. 731, 167 Miss. 546...