State v. Ossing

• Decision Date: 21 December 1934
• Docket Number: No. 32437.,32437.
• Parties: STATE ex rel. ADLER et al. v. OSSING et al.
• Court: Missouri Supreme Court

79 S.W.2d 255

STATE ex rel. ADLER et al. v. OSSING et al.

No. 32437.

Supreme Court of Missouri.

December 21, 1934.

Motion for Rehearing Overruled February 7, 1935.

In Banc.

Certiorari by the State, on the relation of Jacob Adler and others, against Erwin G. Ossing and others, judges of the circuit court, city of St. Louis, to require respondents to bring up from the circuit 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 Federal Automobile Insurance Underwriters, plaintiff, against the Federal Underwriters, Incorporated, attorney in fact for all subscribers of Federal Automobile Insurance Association and Federal Automobile Insurance Underwriters, Frederick W. Held, and others, defendants."

Record ordered quashed.

Strubinger & Tudor and Wm. H. Tombrink, all of St. Louis, for relators.

Geers & Geers and Foristel, Mudd, Blair & Habenicht, all of St. Louis, for respondents.

TIPTON, Judge.

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 vs. 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, Mo., 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, Inc., the attorney in fact of the defendant subscribers, was by the superior court of Madison county, Ind., 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 11, c. 37, Revised Statutes, 1929 (section 5966 et seq. [Mo. St. Ann. § 5966 et seq., p. 4547 et seq.]). 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 (Mo. St. Ann. § 5975, p. 4551), upon an application therefor, as provided by section 5968 (Mo. St. Ann. § 5968, p. 4547), concurrently with which the attorney in fact, designated by the subscribers, as provided by section 5969 (Mo. St. Ann. § 5969, p. 4548), 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...