State ex rel. and to Use of Pennsylvania Fire Ins. Co. v. Sevier

• Decision Date: 09 March 1937
• Docket Number: 35156
• Citation: State ex rel. and to Use of Pennsylvania Fire Ins. Co. v. Sevier, 102 S.W.2d 882, 340 Mo. 675 (Mo. 1937)
• Parties: State of Missouri at the Relation and to the use of Pennsylvania Fire Insurance Company et al., Relators, v. Nike G. Sevier, Judge of the Circuit Court of Cole County
• Court: Missouri Supreme Court

102 S.W.2d 882

340 Mo. 675

State of Missouri at the Relation and to the use of Pennsylvania Fire Insurance Company et al., Relators,

v.

Nike G. Sevier, Judge of the Circuit Court of Cole County

No. 35156

Supreme Court of Missouri

March 9, 1937

Provisional rule made absolute.

Robert J. Folonie, E. R. Morrison and Homer H. Berger for relators; Ragland, Otto & Potter and Igoe Carroll & Keefe of counsel.

(1) A final judgment having been entered in The American Constitution Assurance Company v. O'Malley and it having been appealed to the Supreme Court and the judgment term having expired, the Circuit Court of Cole County would be without jurisdiction to enter any order, decree or further judgment in that cause. A. Coast Line Railroad Co. v Florida, 295 U.S. 301, 79 L.Ed. 1451; 22 R. C. L., p 22, sec. 21; State ex rel. St. Charles Sav. Bank v. Hall, 321 Mo. 624; Reid v. Bright, 232 Mo. 399; Sec. 1022, R. S. 1929; State ex rel. Gray v. Hennings, 194 Mo.App. 545; Maryland Cas. Co. v. Lucky Budge Min. Co., 192 Mo.App. 337; In re Engelhard & Sons Co., 231 U.S. 651; Wright v. Central Ky. Nat. Gas Co., 297 U.S. 541. (2) The quo warranto case State ex inf. McKittrick, Attorney General, v. American Colony Insurance Company did not determine that the policyholders were entitled to a return of the impounded fund. State ex inf. McKittrick v. Am. Colony Ins. Co., 336 Mo. 406; Owen v. Gilchrist, 304 Mo. 330, 263 S.W. 423; M., K. & T. Ry. Co. v. Am. Surety Co., 291 Mo. 92, 236 S.W. 657; Schnitzer v. Powder Co., 160 S.W. 282; Koch v. City of Weston, 203 Mo.App. 445, 220 S.W. 1007; State ex rel. v. Sewer District, 333 Mo. 900, 63 S.W.2d 133; Macon County v. Farmers Trust Co., 325 Mo. 784, 29 S.W.2d 1096; Davidson v. Mayhew, 169 Mo. 258, 68 S.W. 1031; State ex rel. v. Harris, 228 Mo.App. 469, 69 S.W.2d 307; Wrather v. Salyer, 274 S.W. 1106; Kirk v. Met. Life Ins. Co., 225 Mo.App. 756, 38 S.W.2d 519; Scheer v. Trust Co., 330 Mo. 149, 49 S.W.2d 135; Dolph v. Maryland Cas. Co., 303 Mo. 534, 261 S.W. 330; Nat. Cypress Pole & Piling Co. v. Hemphill Lbr. Co., 325 Mo. 807, 31 S.W.2d 1059; Boyken v. Sharp, 193 Mo.App. 607; Sklebar v. Downey, 220 Mo.App. 5, 285 S.W. 148; Davidson v. Davidson R. E. Co., 249 Mo. 474, 155 S.W. 1; Stephens v. Moore, 298 Mo. 215; Witte v. Storm, 236 Mo. 470; Gray v. Earls, 298 Mo. 116. (3) Relators are entitled to have a permanent writ of prohibition issued prohibiting the respondent, judge of the Circuit Court of Cole County, from any further action in case of American Constitution Fire Assurance Company v. O'Malley. State ex rel. Page v. Terte, 324 Mo. 925; Bromschwig v. Carthage Marble & White Lime Co., 334 Mo. 830; State ex rel. v. Oliver, 163 Mo. 696; State ex rel. v. Eby, 170 Mo. 521; State ex rel. v. Huck, 296 Mo. 383.

Lewis H. Cook, H. P. Lauf, Gilbert Lamb and Glenn C. Weatherby for respondent.

(1) The relators here were the respondents in the quo warranto case. The question of the right of the respondents in that case to collect the increase pending the American Constitution case was the sole issue. That issue was judicially determined against the respondents there, relators here. Hence, the judgment there precludes relators here from again litigating that issue. That judgment is conclusive and final against relators as to all issues there determined. State ex inf. McKittrick v. Am. Colony Ins. Co., 336 Mo. 406; Case v. Sipes, 280 Mo. 120, 217 S.W. 306; St. Louis v. United Rys., 236 Mo. 421, 174 S.W. 78; Hartford Fire Ins. Co. v. Ibs, 237 U.S. 662. (2) June 5, 1930, the relators instituted the action herein referred to as the American Constitution case. On the same day they procured an ex parte order purporting to authorize them to collect and impound an increase in fire and windstorm rates. No injunctive relief was sought by them and no showing made until May 8, 1935, that they would suffer confiscation of their property pending the suit unless permitted to collect and impound the increase to await the final outcome of the case. This preliminary showing was imperative if they desired to reap the benefits of the increase pending suit. Hence, all moneys collected and impounded prior to May 8, 1935, were wrongfully collected and the relators have no interest therein present, future, or contingent. North British & Merc. Ins. Co. v. Thompson, 330 Mo. 1146; Davis v. Hartwig, 195 Mo. 398; Carlin v. Wolf, 154 Mo. 543; Goodrich Rubber Co. v. Bennett, 281 S.W. 75; Betzler v. James, 227 Mo. 375, 126 S.W. 1007; Phoenix Trust Co. v. Holt, 279 S.W. 717, 312 Mo. 563; Thompson v. Lindsay, 242 Mo. 53, 145 S.W. 472. (3) The appeal from the judgment in the American Constitution case does not divest respondent of power and jurisdiction to settle and adjust claims against the fund in the registry of his court and order its distribution. This because the respondent's jurisdiction of the fund and his power to distribute it is in no sense dependent upon the outcome of such appeal. North British & Merc. Ins. Co. v. Thompson, supra; Borchers v. Barckers, 158 Mo.App. 274; In re Antigo Screen Door Co., 123 F. 249.

OPINION

Collet, J.

Original proceeding in prohibition. On June 5, 1930, a large number of stock fire insurance companies operating in Missouri brought an action to review an order of the State Superintendent of Insurance by which order that officer had refused to approve a proposed rate increase initiated by the insurance companies. That cause was entitled American Constitutional Fire Assurance Company et al. against the then acting insurance superintendent. The present insurance superintendent was substituted as defendant upon his ascension to that office. That cause will hereafter be referred to as the "rate case." Immediately prior to the institution of the rate case the insurance companies began collecting the increased rates theretofore initiated by the companies but disapproved by the insurance superintendent. Upon the filing of the rate case the circuit court ordered the impounding of the increase upon the theory that the statute (Sec. 5874, R. S. 1929) authorized such a course. On May 30, 1932, an action in mandamus was instituted in this court by an insurance company affected by certain orders made in the pending rate case charging certain imperfections in those orders. The relief sought in that case is of no importance here. However, in the opinion in that case delivered by this court on August 4, 1932, reported in State ex rel. North British & Mercantile Ins. Co. v. Thompson, 330 Mo. 1146, 52 S.W.2d 472, it was held that the statute (Sec. 5874, supra) made no provision for impounding a rate increase during the pendency of a statutory review proceeding under Section 5874. On January 24, 1933, the Attorney General filed an information in this court in the nature of a quo warranto, charging, among other things, that the insurance companies were making unlawful collections of premiums to the extent of the increase above referred to, and requesting that this court "make a proper order for distribution" of the impounded funds. The proceeding last referred to will be referred to as the "quo warranto" case. The opinion in that case is reported in State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876. It held that the collection and impounding of the increase was unauthorized in a statutory proceeding under Section 5874, supra, and ordered that such collection and impounding cease, "unless . . . the same be permitted under the order, judgment or decree of a court of competent jurisdiction in that behalf. That opinion further held that the collection of an increase and the impounding thereof was proper in a proper injunction proceeding in equity. After the opinion in the quo warranto case was delivered an amended petition asking injunctive relief was filed in the rate case and a temporary injunction importing to authorize the future collection of the increase was obtained on May 9, 1935. Final judgment was entered by the circuit court in the rate case on May 23, 1935. By that judgment the increase was denied and all of the impounded funds ordered distributed to the policyholders from whom they had been collected. An application for appeal from this judgment was made and an appeal was granted to this court. Appeal bond was fixed, given and approved, and the appeal was duly lodged here on May 27, 1935.

On July 28, 1936, Charles H. Buchanan and Louise M. Buchanan, on behalf of themselves and others similarly situated, filed a petition without notice or leave of court, in the same circuit court from which the appeal was taken in the rate case, by which petition they sought to establish, as policyholders, claims against the funds impounded in the rate case and to secure the payment of the...