State ex rel. Adler v. Ossing

• Decision Date: 07 February 1935
• Parties: State of Missouri at the Relation of Jacob Adler et al., Relators, v. Erwin G. Ossing, M. Hartmann and O'Neill Ryan, Judges of the Circuit Court, City of St. Louis
• Court: Missouri Supreme Court

79 S.W.2d 255

336 Mo. 386

State of Missouri at the Relation of Jacob Adler et al., Relators, v. Erwin G. Ossing, M. Hartmann and O'Neill Ryan, Judges of the Circuit Court, City of St. Louis

Supreme Court of Missouri

February 7, 1935

Motion for Rehearing Overruled February 7, 1935.

Record of the Circuit Court of the City of St. Louis quashed.

Strubinger Tudor & Tombrink for relators.

(1) The service of process as shown by the record in said cause does not conform to the statute and is illegal and void. Secs 703, 720, 728, 5894, R. S. 1929; Salisbury v Salisbury, 274 Mo. 180, 202 S.W. 529; Perry v Turner, 55 Mo. 418; Luecke v. Treadway, 45 Mo.App. 507; Frumberg v. Haderlien, 167 Mo.App. 717, 151 S.W. 160; Hale v. Allison, 188 U.S. 56; Fidelity Tr. & S.D. Co. v. Archer, 179 F. 32; Hall v. Hall, 260 P. 645; Abbey v. Dry Goods Co., 24 P. 426; Burke v. Sheer, 130 N.W. 962; Randall v. McClain, 143 N.W. 478; O'Brien v. Fitzgerald, 39 N.Y.S. 707; Rogers v. Boston Club, 205 Mass. 261; White v. Harbeson, 183 S.W. 475; Sergeant v. Goldsmith D. G. Co., 221 S.W. 259; 21 R. C. L. 1262. (2) Unless there is joint liability an action cannot be maintained against defendants jointly in a single action. Sec. 703, R. S. 1929; Salisbury v. Salisbury, 274 Mo. 180, 202 S.W. 529; Perry v. Turner, 55 Mo. 418; Luecke v. Treadway, 45 Mo.App. 507; Lile v. Nefauver, 51 S.W.2d 473; See cases cited under Point 1. (3) The purported service of process in said suit does not afford defendants due process of law. See: Art. II, Sec. 30, Const. of Mo.; Art. XIV, Amends. to U.S. Const., Sec. 1; State ex rel. v. North, 264 S.W. 678, 304 Mo. 607, 271 U.S. 40; Black v. Banks, 37 S.W.2d 596; Old Ft. Wayne Life Assn. v. McDonough, 204 U.S. 17; Coe v. Armour Fertilizer Works, 237 U.S. 413; Bernheimer v. Converse, 206 U.S. 516; Converse v. Hamilton, 224 U.S. 243; Selig v. Hamilton, 234 U.S. 652; Gutierrez v. Middle Rio Grande C. Dist., 282 P. 1; 21 R. C. L. 1262.

Geers & Geers and Foristel, Mudd, Blair & Habenicht for respondents.

(1) The scope of review on certiorari does not reach matters other than the jurisdiction of the tribunal whose records are ordered up by the writ; and errors arising in the course of the exercise of that jurisdiction may be reviewed only on appeal or writ of error. State ex rel. v. Elliff, 58 S.W.2d 283; State ex rel. v. Staten, 268 Mo. 299. (2) The provisions of Article II, Chapter 37, are to be considered as part of all contracts of insurance issued to subscribers in Missouri, with like effect as if copied into the contract. Cravens v. Insurance Co., 148 Mo. 583, 604; Schmidt v. Forresters, 228 Mo. 699; Orthwein v. Ins. Co., 261 Mo. 665. (3) Service of the writ of summons as provided in Section 5969, Revised Statutes 1929, does not violate the due process provisions of the Constitution. State v. Gantt, 274 Mo. 490; Milling Co. v. Insurance Co., 267 Mo. 524; Insurance Co. v. Milling Co., 243 U.S. 93, 61 L.Ed. 610; Pennoyer v. Neff, 95 U.S. 735, 24 L.Ed. 573. (4) Service of process on the Superintendent of Insurance under this statute is personal and not constructive. Cox v. Insurance Co., 137 Mo.App. 40; State v. Gantt, 274 Mo. 190; Milling Co. v. Insurance Co., 267 Mo. 524; Spangler v. Association, 157 S.W. 667; Rogers v. National, 155 S.W. 875; Curhman v. F. & D. Co., 152 S.W. 126; Bankers v. Wire Co., 129 S.W. 765. (5) When the State prescribes a particular manner of service no other service (except by agreement) may be pursued. 25 C. J. 220; Stone v. Insurance Co., 78 Mo. 655; Mining & Milling Co. v. Insurance Co., 267 Mo. 575; State v. Grimm, 239 Mo. 135; Thompson v. Insurance Co., 28 F.2d 877. (6) Service in the manner contracted and agreed to in the contract sued on is valid. Pennoyer v. Neff, 95 U.S. 735, 24 L.Ed. 573; Insurance Co. v. Milling Co., 243 U.S. 93, 61 L.Ed. 610; State ex rel. v. Gantt, 274 Mo. 501.

OPINION

Tipton, J.

This case comes to the writer on reassignment. Certiorari to the judges and clerk of the Circuit Court of the City of St. Louis, to bring up from that court the record in the cause entitled "Rodowe H. Abeken, Ancillary Receiver for the State of Missouri, of the funds and assets of all subscribers of Federal Automobile Insurance Association and/or Federal Automobile Insurance Underwriters, plaintiff, v. The Federal Underwriters, Incorporated, attorney in fact for all subscribers of Federal Automobile Insurance Association and/or Federal Automobile Insurance Underwriters, Frederick W. Held and several hundred other named subscribers, defendants. Number 170597.

In that action, the plaintiff, as such receiver, sought to recover of the several hundred defendant subscribers on contracts or policies of insurance issued to and accepted by them, one additional assessment for the years 1924, 1925, 1926 and 1927 each. A writ of summons was issued to the Sheriff of Cole County, Missouri, which was served upon the Superintendent of Insurance of this State on July 23, 1931. None of the defendants appeared in obedience to the writ and the court rendered several judgments against each defendant, totaling several hundred thousand dollars.

In March, 1928, the Federal Underwriters Incorporated, the attorney in fact of the defendant subscribers, was by the Superior Court of Madison County, Indiana, found insolvent and a receiver appointed "of the funds and assets, property and rights of action belonging to the subscribers," and in due course Abeken was appointed ancillary receiver of such assets, funds, property and rights of action in and for the State of Missouri.

The character of insurance conducted by the defendants, as alleged in the plaintiff's petition is that contemplated and provided for in this State in Article XI, Chapter 37, Revised Statutes 1929. Under this method of insurance the fund from which losses are paid is derived from premiums or deposits made by the subscribers upon becoming such, together with additional assessments or premiums, not to exceed one additional assessment for any one year.

License to do business in this State was duly issued by the Superintendent of Insurance for the years 1924, 1925, 1926 and 1927, as provided by Section 5975, Revised Statutes 1929, upon an application therefore, as provided by Section 5968, concurrently with which the attorney in fact, designated by the subscribers, as provided by Section 5969, filed with the Superintendent of Insurance a power of attorney which provided that "service of process may be had upon the Superintendent of Insurance in all suits in this State arising out of such policies, contracts or agreements, which service shall be valid and binding upon all subscribers exchanging at any time reciprocal or inter-insurance contracts through such attorney."

Respondent states the issues in this cause as follows:

"The sole question here is whether the service upon the Superintendent of the Insurance Department, as shown by the amended return of the Sheriff of Cole County was sufficient to confer jurisdiction upon the Circuit Court in case No. 170,597, referred to and described in relator's application for the writ here, to proceed as against the subscribers in that suit. If it did so, then no matter of error by the Court proceeding under its jurisdiction can be considered here. The scope of review under certiorari is limited to inquiry into the jurisdiction of the Court whose records are brought up by the writ. Relator concurs in this statement so far as concerns the issue here. The insurance contracts involved here were obviously such character of business, to-wit, reciprocal or inter-insurance, as is provided for by Article XI, Chapter 37, Revised Statutes of Missouri, 1929. Section 5969, a part of that act and chapter, prescribes the manner of service to be followed in suits on contracts of reciprocal or interinsurance and it follows that no other manner of service may be pursued or had."

The amended sheriff's return does not appear in the respondent's return to our writ, it is brought to our attention in an additional abstract of the record, which is not even certified to by the clerk of respondent's court. "In certiorari proceedings the determination of the question involved is to be made upon the return; facts cannot be brought to the attention of the court outside of the return." [H. & St. J. Railroad v. State Board of Equalization, 64 Mo. 294; House v. Clinton County Court, 67 Mo. 522; State ex rel. v. Pearcy, 29 S.W.2d 83, 325 Mo. 335.]

Our writ was granted October 5, 1932, and respondents' return thereto was filed November 4, 1932, while the sheriff's return was amended on March 7, 1933. Under our writ the respondents were "commanded in the meantime to take no further steps in said cause until the further order of this court." It follows that the respondent judge was without authority to permit the sheriff to amend his return after the respondents' return was made in this court to our writ. In the case of State ex rel. Berkshire v. Ellison, 230 S.W. 970, 287 Mo. 654, we held the filing of an application for a writ of certiorari "and the granting of our writ thereon, would have stayed all further proceedings in the Court of Appeals."

In 11 Corpus Juris, 171, the author said:

"After the certiorari has been served on the inferior tribunal, the latter is powerless to alter its record or decee, even for the purpose of correcting mistakes, unless the record itself furnishes the means of making the correction, or the error is a mistake in the arithmetic of the court. Such correction should be made, if at all, for the purpose of enabling the court to obey the command to send up the record, which means the correct and true record."

It follows that the...