Stoddard v. Cambridge Mut. Fire Ins. Co.

• Decision Date: 13 March 1903
• Citation: 54 A. 284,75 Vt. 253
• Parties: STODDARD v. CAMBRIDGE MUT. FIRE INS. CO.
• Court: Vermont Supreme Court

54 A. 284

75 Vt. 253

STODDARD

v. CAMBRIDGE MUT. FIRE INS. CO.

Supreme Court of Vermont. Windham.

March 13, 1903.

Exceptions from Windham County Court; Tyler, Judge.

Action by Clarence G. Stoddard against the Cambridge Mutual Fire insurance Company.The plaintiff recovered judgment, and defendant brings exceptions.Affirmed.

Argued before MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

Clarke C. Fitts, for plaintiff.

Waterman & Martin and Gilbert A. A. Perry, for defendant.

STAFFORD, J.The defendant insured the plaintiff's buildings against loss by fire.The buildings were burned, and this action is to recover the insurance.The property was situated in Massachusetts, and there the plaintiff resided both when the contract was made and when the loss occurred.The defendant is a Massachusetts corporation, having its place of business in that state.When this action was brought the plaintiff had become a resident of Vermont.The defendant appeared and pleaded the general issue, and the trial proceeded until the close of the plaintiff's testimony, when the defendant moved for a verdict, on the ground that the evidence showed that the court had no jurisdiction.The motion was overruled, and the defendant excepted, but proceeded with its defense, introducing, however, no evidence affecting the question of jurisdiction.There was a verdict for the plaintiff, after which and before judgment the defendant moved for judgment notwithstanding the verdict.This motion likewise was overruled, and the defendant excepted.We are now asked to sustain these exceptions.The claim is that the defendant was a foreign corporation, and was not shown to have been doing any business in this state, nor to have any place of business therein.Assuming, without deciding, that the defendant did not waive the first of these exceptions by proceeding with its defense and omitting to renew its motion, and also that its course did not amount to a waiver of the objection itself, it will be sufficient to observe that the whole testimony is referred to in the bill, whereas we have not been furnished with a complete transcript, and are therefore unable to say what did and what did not appear in these respects, beyond the facts already recited, which are not shown by the exceptions to be all the facts bearing upon the question.It is admitted that if the defendant was doing business in this state, and had complied with our statute requiring it to make the secretary of state its attorney to receive service of process, such service would give the court jurisd...