Strubinger v. Mid-Union Indem. Co.

• Decision Date: 19 December 1961
• Docket Number: No. 30807,MID--UNION,30807
• Court: Missouri Court of Appeals
• Parties: Bert E. STRUBINGER, (Plaintiff) Appellant, v.INDEMNITY COMPANY, an Illinois Corporation, and Mid-Union Indemnity Company, an Illinois Corporation, in Conservatorship, and T. Donald Karnes, Special Deputy Bureau of Liquidations, Conservations and Rehabilitations, Department of Insurance, State of Illinois, Defendants, and Aetna Casualty & Surety Company, a Corporation, (Garnishee) Respondent.

Page 397

352 S.W.2d 397

Bert E. STRUBINGER, (Plaintiff) Appellant, v. MID--UNION INDEMNITY COMPANY, an Illinois Corporation, and Mid-Union Indemnity Company, an Illinois Corporation, in Conservatorship, and T. Donald Karnes, Special Deputy Bureau of Liquidations, Conservations and Rehabilitations Department of Insurance, State of Illinois, Defendants, and Aetna Casualty & Surety Company, a Corporation, (Garnishee) Respondent.

No. 30807.

St. Louis Court of Appeals, Missouri.

Dec. 19, 1961.

Norman L. Schmoll, Strubinger, Tudor, Tombrink & Wion, St. Louis, for appellant.

J. C. Jaeckel, Moser, Marsalek, Carpenter, Clearly, Jaeckel & Hamilton, St. Louis, for garnishee-respondent.

RUDDY, Judge.

This is an appeal from an order and judgment of the Circuit Court of the City of St. Louis sustaining a motion to quash a writ of attachment and garnishment in aid thereof and the purported service of said writ of attachment and garnishment, for discharge of the garnishee and for other relief.

This case had its beginning when Bert E. Strubinger, an attorney at law, filed suit against Mid-Union Indemnity Company, an Illinois corporation, Mid-Union Indemnity Company, an Illinois corporation in conservatorship and T. Donald Karnes, Special Deputy Bureau of Liquidations, Conservations and Rehabilitations, Department of Insurance, State of Illinois.

Plaintiff's petition was in two counts. In Count I of said petition plaintiff alleged that he is a resident of the State of Missouri and a duly licensed attorney at law in said state. He further alleged that defendant, Mid-Union Indemnity Company, is an Illinois corporation, and that defendant, T. Donald Karnes, is Special Deputy of the Bureau of Liquidations, Conservations and Rehabilitations of the Insurance Department of the State of Illinois, a legal entity of that state.

It was further alleged in said petition that plaintiff handled a legal matter in the usual course of business between himself and defendants wherein a subrogation claim of the defendants was agreed to be settled for the sum of $5000 with Aetna Casualty and Surety Company, a foreign insurance company authorized to do business in the State of Missouri, with an office in the City of St. Louis, Missouri, and that release papers for that sum were received by plaintiff from the Aetna Casualty and Surety Company and submitted to the defendants for their signatures and the signature of their assured.

It was further alleged by plaintiff in said petition that said release had been signed by defendants and their insured and that Aetna Casualty and Surety Company has contacted plaintiff's office indicating that defendants refused to recognize the attorney's lien of plaintiff for plaintiff's fee for services in effecting the settlement agreement. Plaintiff then alleges in said petition that Mid-Union Indemnity Company and its Conservator have delivered the release to the Aetna Casualty and Surety Company at its St. Louis office and that the sum of $5000 is due and owing to defendants, subject to the lien of plaintiff for his legal fees. Plaintiff prays judgment in Count I of said petition in the sum of $1250 against all defendants.

In Count II of his petition plaintiff adopts pertinent and necessary allegations of Count I of said petition and further alleges in Count II that the defendant Mid-Union Indemnity Company has contracted for services with plaintiff on various items of business and that the sum of $6029.98 is due and owing plaintiff for such services. Attached to said petition was an affidavit signed by the plaintiff wherein it was stated that the defendants are non-residents of the State of Missouri.

A writ of attachment and summons and garnishment in aid of attachment for the Aetna Casualty and Surety Company was issued followed by an alias writ of attachment and summons and garnishment in aid of attachment directed to the Sheriff of Cole County, Missouri, to be served upon the Superintendent of Insurance, Jefferson City, Missouri, as agent for the Aetna Casualty and Surety Company. The Sheriff of Cole County made a return of service of the attachment and summons and garnishment in aid thereof. In said return of service it was stated that said Sheriff of Cole County seized and attached in the hands of Aetna Casualty and Surety Company, Garnishee, 'all debts due or to become due by you to Mid-Union Indemnity Company, an Illinois corporation, Mid-Union Indemnity Company, an Illinois corporation, in Conservations, and T. Donald Karnes, Special Deputy Bureau of Liquidations, Conservations and Rehabilitations, Department of Insurance, State of Illinois, the defendants in the above entitled cause, or so much thereof as will be sufficient to satisfy the sum of Seven Thousand Two Hundred and Seventy-nine and 98/100 ($7279.98)--Dollars with interest and costs of suit.'

Thereafter, a 'Motion of Garnishee To Quash Attachment and Purported Writ of Garnishment and Purported Service Thereof and to Discharge Garnishee' was filed by the Aetna Casualty and Surety Company. The pertinent ground of said motion is as follows:

'3. That Bert E. Strubinger, plaintiff, cannot maintain the action instituted by him against Mid-Union Indemnity Company, an Illinois Corporation, Mid-Union Indemnity Company, an Illinois Corporation, in Conservatorship, and T. Donald Karnes, Special Deputy Bureau of Liquidations, Conservations and Rehabilitiations, Department of Insurance, State of Illinois, as defendants, and in connection wherewith this purported garnishment proceeding was initiated for the purpose of attempting to obtain service upon said defendants, for the reason that, in the case of 'People of the State of Illinois, ex rel, Joseph S. Gerber, Director of the Department of Insurance of the State of Illinois, Petitioner vs. Mid-Union Indemnity Company, a corporation, Defendant, No. 59-1951,' the Circuit Court of Kane County, Illinois, did, on August 31, 1959, and prior to the commencement of said suit of Bert E. Strubinger v. Mid-Union Indemnity Company et al, enter an order in said cause No. 59-1051, providing for the rehabilitation of said Mid-Union Indemnity Company and directing said Joseph S. Gerber to take immediate possession of the property, business and affairs of said Mid-Union Indemnity Company and to rehabilitate said Company in accordance with the provision of the Insurance Code of the State of Illinois; and said Circuit Court did further order that said Mid-Union Indemnity Company, its officers, agents, directors, representatives, attorneys, employees and servants were thereby restrained and enjoined from transacting any company business until the further order of said Court.

'And, said Circuit Court further ordered that all creditors and other persons having claims against said Mid-Union Indemnity Company be and they were thereby enjoined and restrained from instituting any suit or proceeding intended for the purpose of obtaining a judgment against said Mid-Union Indemnity Company, from having any execution issue against said Company upon any judgment theretofore entered against it, and said creditors and claimants and all other persons were thereby restrained and enjoined from taking any action which would interfere with the rehabilitation of said Company, or with the relator's possession and control or title, rights or interests in or to the business or the property of Mid-Union Indemnity Company and from, in any manner, interfering with the conduct of said business by the relator; and that all persons were thereby restrained and enjoined from obtaining or attempting to obtain preferences, judgments, attachments or other like liens, and from making any levy against said Company or its property and assets while the same are in possession and control of relator or until the further order of the Circuit Court.

'And garnishee avers that said order of said Circuit Court was in full force and effect at the time of the commencement of said suit by said Bert E. Strubinger and still is in full force and effect.

'An authenticated copy of said order of said Circuit Court of Kane County, Illinois, is attached hereto and made part hereof by reference.'

The relief sought by the movant was quashing of the writs and the service thereof, a finding that the court had not acquired jurisdiction of the movant and that plaintiff could not maintain the proceeding against the defendants and said garnishee. As stated in said motion, a duly authenticated copy, according to the Act of Congress governing such matters, was filed, which authentication consists of certification that the Circuit Court of Kane County, Illinois, is a court of record and has a Judge presiding, a Clerk attending upon the same as well as a Seal of Court. (Western Assurance Co. v. Walden, 238 Mo. 49, 141 S.W. 595.)

The Judgment and Order of Rehabilitation is as follows:

'This cause coming regularly on for hearing upon the complaint of the plaintiff and on appearance and answer of the defendant, and the parties hereto appearing in open Court by their respective attorneys, and this Court having considered the evidence and arguments of counsel and being fully advised in the premises, doth find:

'1. That it has jurisdiction of the subject matter of this suit and the parties thereto.

'2. That the Mid-Union Indemnity Company, a corporation, defendant herein, is a stock casualty insurance company organized and existing under and by virtue of the insurance laws of the State of Illinois; that said company was originally incorporated on August 28, 1956, and has its principal office in the City of Elgin, County of Kane and State of Ollinois.

'3. That the defendant company was organized and subject to the laws of the State of Illinois relating to insurance, including the Act commonly referred to as the Illinois Insurance Code (Chapter 73, paragraph 603-1065.59, Illinois Revised Statutes, 1957).

'4. That the defendant company has been authorized to transact the kinds of...