Rothrock v. Dwelling-house Ins. Co.

• Decision Date: 18 May 1894
• Citation: 37 N.E. 206,161 Mass. 423
• Parties: ROTHROCK v. DWELLING-HOUSE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 423

37 N.E. 206

ROTHROCK v. DWELLING-HOUSE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1894

COUNSEL

William H. Preble,

for plaintiff.

Hutchins & Wheeler, for defendant.

OPINION

KNOWLTON J.

It appears by the agreed statement of facts that the judgment on which this action is brought was rendered in Arkansas without service of process on the defendant, and that the defendant had no notice or knowledge of the suit until long afterwards. The defendant was incorporated in Massachusetts and had no place of business in Arkansas, except as certain persons solicited insurance for it there, and sent the applications to the office of the defendant in Chicago, Ill where policies were issued. In an action upon a foreign judgment, it is proper to inquire into the jurisdiction of the court in which the judgment was rendered to ascertain whether the defendant appeared, and, if not, whether legal service was made upon him. Gilman v. Gilman, 126 Mass. 26; Wright v. Andrews, 130 Mass. 149. In the present case service was made in the original action on the auditor of the state of Arkansas, and the only question is whether such service was authorized and was sufficient under the statute of that state. The language of the statute is as follows: "Sec. 3834. No insurance company not of this state, nor its agents, shall do business in this state until it has filed with the auditor of this state a written stipulation duly authenticated by the company, agreeing that any legal process affecting the company served on the auditor or the party designated by him, or the agent specified by said company to receive service of process for the company, shall have the same effect as if served personally on the company within this state. And if such company should cease to maintain such agent in this state so designated, such process may thereafter be served on the auditor; but so long as any liability of the stipulating company to any resident of this state continues, such stipulation cannot be revoked or modified, except that a new one may be substituted so as to require or dispense with service at the office of said company within this state, and that such service, according to this stipulation, shall be sufficient personal service on the company. The term process includes any writ, summons, subpoena or order whereby any action, suit or proceedings shall be commenced, or which shall be issued in or upon any action, suit or proceedings. Sec. 3835. Any person or persons or corporation receiving premiums or forwarding applications or in any way transacting business for any insurance company or association not of this state without having received authority agreeably to the provisions of this act, shall forfeit and pay to the school fund of the state the sum of $500 for each month or fraction thereof during which such illegal business was transacted, and any company not of this state doing business without authority shall forfeit a like sum for every month or fraction thereof and be prohibited from doing business in this state until such fines are fully paid." St.Ark.1884.

The defendant had filed no...