Simpson v. Amarillo Mut. Benev. Ass'n

• Decision Date: 12 February 1934
• Docket Number: No. 4152.,4152.
• Citation: 68 S.W.2d 597
• Parties: SIMPSON v. AMARILLO MUT. BENEV. ASS'N et al.
• Court: Texas Court of Appeals

68 S.W.2d 597

SIMPSON v. AMARILLO MUT. BENEV. ASS'N et al.

No. 4152.

Court of Civil Appeals of Texas. Amarillo.

February 12, 1934.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Suit by Gladys L. Williams and others against the Amarillo Mutual Benevolent Association and others, in which Earl Simpson intervened. From an adverse judgment, intervener appeals.

Reversed and remanded, with instructions.

George, Brannan & Tipps, of Wichita Falls, and Ernest Tibbets, of Silverton, for appellant.

JACKSON, Justice.

The appellee benevolent association issued a certificate of mutual life insurance to Ira Simpson in the sum of $1,000. After the death of the assured, Earl Simpson, as beneficiary, sued, and on the 12th day of January, 1933, recovered a judgment in the district court of Briscoe county against the association for the full amount of $1,000, with interest thereon. The judgment, in part, recites as follows:

"The Court further finds that the defendant operates upon an `assessment as needed' plan of mutual insurance, assessing its members each time a death occurs for which a claim is filed and that there are in this state in excess of 1200 members in good standing in said defendant association. * * *

"It is therefore ordered, adjudged and decreed by the Court that the plaintiff do have and recover of and from the defendant the sum of $1,000.00 as the maximum sum payable as stipulated in said policy as the mortuary part received from each member upon assessment, together with interest from date hereof at 6% per annum and that plaintiff recover his costs. It is further ordered, adjudged and decreed that the above named directors and their successors in office in said defendant association immediately assess each of the members of said association with one assessment and to promptly pay to plaintiff herein the mortuary part of said assessment not to exceed $1,000.00 and that said directors and their successors in office pay this sum to the plaintiff before any other claim now filed with said defendant association is paid. The Court further directs said directors to refrain from paying out any amount in said mortuary part to any other person than the plaintiff herein until plaintiff is fully paid, according to the terms of this judgment. The Court further orders said directors to file with this Court within thirty days a verified account of the mortuary fund received upon the aforesaid assessment."

No appeal was prosecuted from this judgment.

The association filed a pleading in the district court of Briscoe county on February 9th thereafter, which recites, in part, as follows:

"Whereas the Honorable District Court of Briscoe County did on or about the 19th day of January, 1933, make and enter a certain order in cause No. 764, styled Earl Simpson vs. Amarillo Mutual Benevolent Association, which said order and judgment bore the date 12th of January, 1933, requiring the officers of the Amarillo Mutual Benevolent Association, defendant in said cause, to levy an assessment against the members thereof for the purpose of promptly paying the plaintiff in said suit, Earl Simpson, the amount of the judgment awarded him in the sum of $1,000.00 and did by said order direct that said directors pay this sum to plaintiff before any other claim now filed with this Association is paid * * *

"Now, therefore, the Amarillo Mutual Benevolent Association * * * does here and now report to said Court in obedience to said order that the directors of said Association did on the 20th day of January, 1933, make and execute an order levying an assessment against each and all members * * * and that in response to said levy and notice of said assessment, there was received * * * the sum of $3,200.00."

The testimony of the receiver Avery is that the $3,200 so collected was paid to him in his official capacity on February 6, 1933.

This report was verified. The record shows that the assessment was made on January 20, 1933, and members were directed to pay within fifteen days thereof, or on or before February 4, 1933. On February 6, 1933, Gladys L. Williams and other certificate holders in said association applied to the judge of the Forty-Seventh judicial district court of Potter county for the appointment of a receiver of said association, alleging its insolvency, and upon the granting of said petition J. H. Avery was appointed as the receiver and Alton B. Reeder was appointed master in chancery. Numerous certificate holders intervened in this action, and on May 12th Earl Simpson, appellant herein, filed his plea of intervention setting up his judgment and the proceedings in the district court of Briscoe county. The master in chancery filed his report finding that Earl Simpson's judgment was a preferred claim and entitled to priority of payment over the claims of all other interveners who were simply certificate holders. Objections and exceptions were made to the master's report and on the 27th day of May the judge of the Forty-Seventh district court of Potter County rendered and entered a judgment denying the right of Earl Simpson to a preference, but allowed it as a claim to be paid upon equality with all other certificate holders in the distribution of the assets of said company, which was found to be insolvent.

Upon an appeal by Simpson alone, the controversy is before this court.

By his first proposition the appellant insists that the Forty-Seventh judicial district court of Potter county had no authority to set aside the judgment of the district court of Briscoe county previously rendered and deny appellant's preference in the funds assessed and collected by the company in obedience to the orders of the district court of Briscoe county for the special purpose of paying the judgment rendered in favor of appellant.

This proposition must be sustained.

The effect of the judgment rendered in the Forty-Seventh judicial district court is to set aside and annul the judgment previously rendered by the district court of Briscoe county.

When one court has acquired jurisdiction of matters in litigation, its authority continues until all matters between the parties to the action have been fully determined, and no other court of co-ordinate jurisdiction may act therein, and any attempt to do so is void, for, as has been said in Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063, 1071: "It seems impossible that two courts can, at the same time, possess the power to make a final determination of the same controversy between the same parties." Stewart v. Poinboeuf, 111 Tex. 299, 233 S. W. 1095.

The rule is further announced with reference to cases of equitable cognizance that, when a court of general jurisdiction has acquired jurisdiction of a cause for one purpose, it will retain jurisdiction as to all questions which are properly involved in the suit or which may become involved by reason of the amendment of pleadings. Zane-Cetti v. City of Ft. Worth (Tex. Civ. App.) 21 S.W.(2d) 355; Chambers & Thigpen v. Cannon, 62 Tex. 293; Cox v. Sinclair Gulf Oil Co. (Tex. Civ. App.) 265 S. W. 196; Conn v. Campbell, 119 Tex. 82, 24 S.W.(2d) 813.

The judgment of the district court of Briscoe county is res judicata of the right declared therein that Earl Simpson was entitled to be paid by the association the face of his policy. It became the duty of the officers of the association, when the assessment levied to pay Simpson's claim had been collected, to pay said amount into the registry of the court of Briscoe county. The district court of Potter county had no authority to order its payment to its receiver J. H. Avery. Scruggs v. Memphis, etc., R. Co., 108 U. S. 368, 2 S. Ct. 780, 27 L. Ed. 756.

We are not passing upon the question of the propriety of the appointment of Avery as receiver by the district court of Potter county That issue is not before us, but it is clear that he had no right in any event to the possession of any of the funds collected upon the assessment levied for the purpose of paying Simpson's claim, until said claim and the accrued costs in that case had been fully paid off and discharged. State v. Epperson, 121 Tex. 80, 42 S.W.(2d) 228; Cavers v. Sioux Oil & Ref. Co. (Tex. Com. App.) 39 S.W.(2d) 862; Chapman Milling Co. v. Yakey (Tex. Civ. App.) 51 S.W.(2d) 639; Gohlman, Lester & Co. v. Whittle, 115 Tex. 9, 273 S. W. 806; Carey v. Looney, 113 Tex. 93, 251 S. W. 1040; Switzer v. Smith (Tex. Com. App.) 300 S. W. 31, 68 A. L. R. 377; Id. (Tex. Civ. App.) 293 S. W. 850; Brunson v. Donald (Tex. Civ. App.) 3 S.W.(2d) 596.

As said in 3 Couch, Cyc. of Ins. Law, § 597: "As a general rule dues and assessments are collected for a specific purpose and with relation to the members who are called upon to pay them, the contract obligation governs. And when such funds are collected, they should ordinarily be applied to the specific purpose for which they are collected. In fact, it has been said that funds raised for a stated purpose must be used for such purpose. Again, when an assessment has been levied and paid to the Company, the fund created thereby becomes, to a certain extent, a trust fund and if the claim for which the assessment...