State v. Am. Bonding & Cas. Co.

• Decision Date: 27 October 1931
• Docket Number: No. 41031.,41031.
• Citation: 238 N.W. 726,213 Iowa 200
• Court: Iowa Supreme Court
• Parties: STATE v. AMERICAN BONDING & CASUALTY CO. ET AL. APPEAL OF PERU TRUST CO. ET AL.

213 Iowa 200

238 N.W. 726

STATE

v. AMERICAN BONDING & CASUALTY CO. ET AL.APPEAL OF PERU TRUST CO. ET AL.

No. 41031.

Supreme Court of Iowa.

Oct. 27, 1931.

Appeal from District Court, Woodbury County; C. C. Hamilton, Judge.

Claims against the receiver of the American Bonding & Casualty Company were disallowed, and claimants appeal.

Affirmed on appeal of Peru Trust Company; on other appeals reversed.Hoag & Ullmann, of Chicago, Ill., and Kass & Kass, of Sioux City, for appellant Peru Trust Co.

Judah, Reichmann, Trumbull & Cox, of Chicago, Ill., and Kass & Kass, of Sioux City, for appellant Rothschil & Co.

Kass & Kass, of Sioux City, for appellants United Fuel & Supply Co., and others.

Jepson, Struble & Sifford, of Sioux City, for appellant Eckhart Milling Co.

Gill & Gill, of Sioux City, for appellee American Bonding & Casualty Co.

MORLING, J.

The Chicago Bonding & Insurance Company was an Illinois corporation. It had on deposit with the director of trade and commerce of Illinois security “for the special and sole benefit and security of all its creditors and holders of its policies, bonds and contracts,” $305,334. The American Bonding & Casualty Company was an Iowa corporation. It had on deposit with the insurance department of Iowa capital assets amounting to $703,250 “for the protection of policy holders of said Company.” The purpose of this deposit and the rights of policyholders in it were the subject of the suit before this court under the title of State v. American Bonding & Casualty Co., 206 Iowa, 988, 221 N. W. 585, the opinion and record in which are by stipulation made a part of the record in this case. On December 20, 1919, these two corporations agreed to consolidate “into a single new corporation under the name of the American Bonding & Casualty Company” (the same name as that of the then existing Iowa company).The agreement of consolidation recites that the companies, “for the purpose of economy in management, and the increase of the resources of each, and to obtain an increased volume of business and to reduce the proportionate expense of operation, desire to consolidate the business, property, assets and capital stock of both, by means of a statutory consolidation, to be effected under * * * Chapter 58 of the Acts of the 30th General Assembly of the State of Iowa, and all other acts of said General Assembly * * * and pursuant to the provisions of an act of the General Assembly of the State of Illinois * * *”

The agreement provides: “All property * * * including agency, plant, good will, business and contracts of both of said constituent companies shall vest in and be owned and possessed by the consolidated company immediately upon the consummation of the consolidation herein agreed upon, * * * and all bonds of indemnity, insurance, policies, contracts, debts, liabilities, charges and obligations of every name, nature and description of each of said constituent companies, shall be and are hereby assumed in full by the consolidated company. * * * All securities of the Chicago on deposit with the Director of the Department of Trade and Commerce of the State of Illinois shall remain on deposit until otherwise ordered by a court of competent jurisdiction, and the Chicago agrees to secure such court order and to pay the necessary expenses of securing the same * * * If this contract should be held invalid as a statutory consolidation of two corporations of different states, such holding shall not invalidate this contract, but the same shall be considered as a contract of reinsurance wherein and whereby the said American assumes and reinsures all the liabilities and acquires all the property and property rights of the Chicago, in consideration of the issuance of the stockholders of the Chicago of the amount of the capital stock of the American as herein provided. * * *”

The agreement was submitted to the proper officials of the respective states and to the stockholders of both companies in accordance with its provisions and approved. The consolidated company received from the Chicago Company securities allowed as admitted assets amounting to about $260,000, and paid claims against the Chicago Company before this receivership amounting to approximately $300,000. The Chicago Company at the time of the consolidation was insolvent. The receiver appointed for it, as later mentioned, received and retained assets of the Chicago Company in the sum of approximately $200,000. A suit was instituted in Illinois by the consolidated company against the director of the department of trade and commerce of Illinois and the Chicago Company to recover the deposit of the Chicago Company in the hands of the director of the department of trade and commerce of Illinois, who filed cross-bill setting up his duty to hold the securities for the benefit of the creditors of the Chicago Company, a receiver for which was therein prayed for and appointed. That receiver filed intervening petition asking that the securities be ordered delivered to him to be applied to the payment of expense and of claims in the receivership proceedings. Later the appellee was appointed receiver herein and substituted as complainant in place of the American Bonding & Casualty Company. The cause in Illinois went to trial resulting in a decree denying the prayer of the complainant, ordering the Chicago Company to deliver to the receiver thereof all its assets and ordering the Director of Trade and Commerce to turn over to such receiver the deposit held by him. An appeal was taken and the decree affirmed. The opinion on that appeal, American Bonding & Casualty Co. v. Chicago Bonding & Insurance Co., 226 Ill. App., page 475, is made a part of the present record. The appellant claimants are creditors of the Chicago Company. They filed their claims with the receiver of that company and realized therefrom a dividend of 26 1/2 per cent. Thereupon they filed in this receivership action their respective claims for balance of the indebtedness so owing to them by the Chicago Company. The claims were referred.

The referee found that the new corporation “was a continuation of the American Bonding & Casualty Company; that the Chicago Company was not dissolved and did not cease to exist by virtue of said consolidation agreement * * * retained its corporate character for the purposes expressed in the statutes of the State of Illinois * * * (3) That creditors and holders of policies, bonds and contracts of insurance of the Chicago Bonding & Insurance Company did not, by virtue of the consolidation agreement become creditors and holders of policies, bonds and contracts of insurance of the American Bonding & Casualty Company. (4) That the capital stock deposit of the Chicago Bonding & Insurance Company, amounting to $305,344.00 * * * was at all times herein mentioned a trust fund for the benefit and security of the creditors and holders of policies, bonds and contracts of the said company, and that the title and right of possession of said trust fund did not pass to the said Consolidated Company * * * (5) That the creditors and holders of policies, bonds and contracts of insurance of the American Bonding & Casualty Company had no right at any of the times herein mentioned, to participate in the distribution of the said capital deposit of the Chicago Bonding & Insurance Company, and that no assets of the Chicago Bonding & Insurance Company came into the hands of the permanent receiver of the said Consolidated Company. (6) That the creditors and holders of policies, bonds and contracts of the Chicago Bonding & Insurance Company who have filed their claims with the receiver of the Chicago Bonding & Insurance Company in the receivership proceedings of said company in the Superior Court * * * have made an election to recognize the Chicago Bonding & Insurance Company as their debtor or insurer as the case may be, and have thereby given notice that they have refused to accept the obligation of the Consolidated Company in lieu of their original debtor or insurer * * * have never assented to the contract of consolidation, or elected to accept the Consolidated Company as their debtor or insurer * * * and have indicated their intention to look to the assets of the Chicago Bonding & Insurance Company, and particularly to the capital stock for the satisfaction of their claims. * * * (7)” That the decision in State v. American Bonding & Casualty Co., 206 Iowa, 988, 221 N. W. 585, “is the law of this case, insofar as it is applicable hereto. * * * That in addition to policy holders, as defined by said decision, of the American Bonding & Casualty Company, the holders of policies, bonds and contracts of insurance of the American Bonding & Casualty Company, and those claimants for whose benefit and on whose behalf policies, bonds and contracts of insurance were written by the American Bonding & Casualty Company are entitled to share in the distribution of said capital deposit and the increment thereof, and that these claims must first be paid in full before the general claimants of the American Bonding & Casualty Company are entitled to receive any dividends from said capital deposit and the increment thereof.”

Exceptions to the report were filed by the respective appellants.

[1] I. The exceptions of the Peru Trust Company were not filed within the time permitted by statute or by order of the trial court. The Peru Trust Company moved for permission to file objections and exceptions after the expiration of the time allowed therefor, alleging that it was a resident of Illinois, had no local counsel, received no actual notice, setting up grounds of excuse for the delay which we find unnecessary to set out. The motion was overruled. In order to have a review in this court of the report of the referee, exceptions must be taken in the lower court within the time allowed by statute (or in a proper case fixed by the court). Code 1931, §§ 11535, 11536, 11537, 11538; In re Estate of...