Spangler v. Ridgeley Protective Ass'n.

• Decision Date: 19 May 1913
• Citation: 157 S.W. 667
• Parties: SPANGLER v. RIDGELEY PROTECTIVE ASS'N.
• Court: Missouri Court of Appeals

157 S.W. 667

SPANGLER v. RIDGELEY PROTECTIVE ASS'N.

Kansas City Court of Appeals. Missouri.

May 19, 1913.

Rehearing Denied June 16, 1913.

JUSTICES OF THE, PEACE (§ 155) — APPEALS — TIME FOR TAKING APPEAL.

Rev. St. 1909, § 7042, providing that process against foreign insurance companies issued by justices of the peace may be directed to and served by any officer authorized to serve process in the city or county where the superintendent of insurance shall have his office, at least 15 days before the return day, and that such service shall confer jurisdiction, does not make foreign insurance companies a resident of every county in the state within the statute requiring resident defendants to appeal from judgments of justices of the peace within 10 days, especially in view of its requirement that process shall be served at least 15 days before the return day instead of 10 days as in the case of residents, and hence under section 7568, authorizing non-residents of the county to appeal within 20 days such company has 20 days within which to appeal.

Appeal from Circuit Court, Clinton County; Alonzo D. Burns, Judge.

Action by Hugh Spangler against the Ridgeley Protective Association. From a judgment for defendant, plaintiff appeals. Affirmed.

R. H. Musser, of Plattsburg, for appellant. Frost & Frost, of Plattsburg, for respondent.

TRIMBLE, J.

The respondent is a foreign insurance company authorized to do business in this state, and has duly authorized the Superintendent of Insurance to accept service for it in any suit against it in this commonwealth. It had no local agent in Clinton county or elsewhere upon whom service could be obtained. Appellant brought suit on one of its policies before a justice of the peace in Clinton county, and service was had upon the Superintendent of Insurance at Jefferson City in Cole county. On June 8th judgment was rendered by the justice against the respondent, and on June 24th, 16 days later, the respondent filed its affidavit and bond for appeal to the circuit court which was allowed and proper notice thereof given to appellant. In the circuit court the appellant filed a motion to dismiss the appeal because it had not been taken within the 10 days allowed a resident defendant in which to appeal. The respondent contended that, as the appeal had been taken within the 20 days allowed nonresidents, the motion should be overruled. The trial court took this view and overruled plaintiff's motion to dismiss. Whereupon, plaintiff refusing to proceed further, the court dismissed the case and plaintiff appealed.

Section 7568, R. S. Mo. 1909, provides that, if the appealing party be a "nonresident of the county where the suit shall be instituted, the party shall in all cases of appeal allowed by this article, have twenty days to make such appeal." By section 7042, R. S. Mo. 1909, it is provided that "* * * in case such process is issued by a justice of the peace or other inferior court, the same may be directed to and served by any officer authorized to serve process in the city or county where said Superintendent shall have his office at least fifteen days before the return day thereof, and such service shall confer jurisdiction."

It is contended by appellant that this section makes every foreign insurance company in the state a resident of every county in the state. And that since by this statute it is a resident of each county, it must perfect its appeal within the ten days allowed other residents. But it will be noticed that it does not say a foreign company shall be deemed a resident of the county, but only that service on the Superintendent shall confer jurisdiction. The company is not regarded as a resident, since only ten days' service is required on other residents, while fifteen days is required on the company. Said section 7042 relates, not to residence, but solely to service of summons and jurisdiction. This jurisdiction comes by reason of the foreign company having voluntarily submitted to it by filing the power of attorney with the Superintendent. This power of attorney does not...