State ex rel. Mid-West Ins. Co. v. Superior Court of Marion County, Room 1
| Decision Date | 24 July 1952 |
| Docket Number | No. 28932,MID-WEST,28932 |
| Citation | 106 N.E.2d 924,231 Ind. 94 |
| Parties | . Supreme Court of Indiana |
| Court | Indiana Supreme Court |
Seymour M. Bagal, Murrey E. Dulberger, Indianapolis, for relator.
J. Emmett McManamon, Atty. Gen., Clarence F. Merrell, Deputy Atty. Gen., amici
Joseph G. Wood, Indianapolis, for respondent.
Joseph G. Wood, Indianaplis, for respondent.
Relator Mid-West Insurance Company sought and obtained here a temporary writ of prohibition which prohibited respondents from exercising further jurisdiction to hear and determine an application by Myrtie Brooks for the appointment of a receiver for relator, and also an intervening petition by the Department of Insurance of Indiana which sought a court order to take possession of the property of relator under § 39- 3401, Burns' 1952 Replacement, and an injunction under § 39-3409, Burns' 1952 Replacement.
On May 27, 1952, Myrtie Brooks, hereinafter referred to as the plaintiff, filed her amended complaint against the relator, in substance alleging that relator was incorporated as an insurance company under a special act of the General Assembly passed in 1832, said act being Chapter 138 of the 1832 Acts, its name then being the 'Lawrenceburg Insurance Company,' but that subsequently by order of the Dearborn Circuit Court, said name was changed to 'Mid-West Insurance Company.' Said complaint further alleged relator's principal office was now at 408 State Life Building, Indianapolis. The amended complaint further alleged that plaintiff had recovered a judgment against LeRoy Davis and Clara Davis for negligent injury to her person in the sum of $7,000, but that said judgment defendants were insolvent, an execution against them had been returned unsatisfied, and that no part of said judgment had been paid or satisfied, but that the judgment defendants had a policy of insurance with relator, in full force and effect at the time the injuries were received, which policy contained a provision that in case an execution was returned unsatisfied because of the insolvency or bankruptcy of the insured, the injured person could maintain an action against the relator for the amount of the judgment, not exceeding the amount of the policy, pursuant to the standard provisions required of such policies by § 39-3005, Burns' 1952 Replacement. The amended complaint further alleged failure to pay the claim, and prayed a receiver be appointed under the general receivership provisions of the code, § 3-2601, Burns' 1946 Replacement.
The intervening petition by the Department of Insurance of Indiana averred the change in name of the relator on May 22, 1922, and that it had been operating an insurance business in Indianapolis for approximately the last three years; that the relator was insolvent, or in imminent danger of insolvency, in eight separate particulars, and that it had wilfully violated its charter in two particulars. The Department prayed the relator be enjoined from transacting its insurance business until further order, § 39-3409, Burns' 1952 Replacement, and that the Department be ordered to take possession of the business and property of relator for the purposes of rehabilitation, subject to the further order of the trial court. Sections 39-3401, 39-3402, Burns' 1952 Replacement.
The relator asserts that the trial court has no jurisdiction to appoint a receiver for it under the general receivership provisions of the code, § 3-2601, Burns' 1946 Replacement, by reason of § 39-5023, Burns' 1952 Replacement, which provides:
'No order, judgment, or decree providing for an accounting or enjoining, restraining or interfering with the operation of the business of any insurance company, association, or society, to which any provision of this act is applicable, or for the appointment of a temporary or permanent receiver thereof, shall be made or granted otherwise than upon the application of the department, except in an action by a judgment creditor or in proceedings supplemental to execution.' [Section 270a, Ch. 162, Acts 1935, p. 786.]
The right asserted by the plaintiff was on a contract for the benefit of a third party as required by the standard provisions set forth in § 39-3005, Burns' 1952 Replacement, § 1, Ch. 180, Acts 1931. The plaintiff was not yet a judgment creditor of relator, nor could she bring proceedings supplemental to execution until she recovered her judgment against relator. Section 39-5023, Burns' 1952 Replacement, prohibited the plaintiff from bringing an action for receiver at this time, and the exclusive right to bring such action was vested in the Department of...
To continue reading
Request your trial
-
Monon R. Co. v. Citizens of Sherwood Forest Addition, Marion County, 1268A218
...R. Co. v. Public Service Comm. (1922),191 Ind. 627, 134 N.E. 282. In the case of State ex rel. Mid-West Insurance Company v. Superior Court of Marion County, et al. (1952), 231 Ind. 94, 99, 106 N.E.2d 924, 926, our Supreme Court, speaking concerning the powers of the Department of Insurance......
-
Demma v. Forbes Lumber Co.
...N.E.2d 254, supra; State ex rel. Wever v. Reeves, 1951, 229 Ind. 164, 169, 96 N.E.2d 268; State ex rel. Mid-West Ins. Co. v. Superior Court of Marion County, 1952, 231 Ind. 94, 100, 106 N.E.2d 924; Bailman v. Duffecy, 1952, 230 Ind. 220, 228, 102 N.E.2d 646; Wedmore v. State, 1954, 233 Ind.......
-
Indiana State Personnel Board v. Parkman, 20675
...Personnel Board as prescribed by the statute was the exclusive procedure that had to be followed. State Ex-rel M-West Ins. Co. v. S. Ct. of Marion Co. (1952), 231 Ind. 94, 106 N.E.2d 924; State Ex-rel Gary v. Lake Sup. Ct. (1947), 225 Ind. 478, 76 N.E.2d 254; City of Ft. Wayne v. Bishop (19......
-
Wright v. Kinnard, 368A44
...has no authority to ignore such procedure or adopt a different method of procedure. State ex rel. M(id-)West Ins. Co. v. S(uperior) Ct. of Marion Co. (1952), 231 Ind. 94, 100, 106 N.E.2d 924, 927; State ex rel. Gary (Taxpayers' Ass'n) v. Lake Sup(erior) Ct. (1947), 255 Ind. 478, 493, 76 N.E......