Swing v. St. Louis Refrigerator & Wooden Gutter Co.

• Decision Date: 24 March 1906
• Citation: 93 S.W. 978,78 Ark. 246
• Parties: SWING v. ST. LOUIS REFRIGERATOR & WOODEN GUTTER COMPANY
• Court: Arkansas Supreme Court

93 S.W. 978

78 Ark. 246

SWING v. ST. LOUIS REFRIGERATOR & WOODEN GUTTER COMPANY

Supreme Court of Arkansas

March 24, 1906

Appeal from Clark Circuit Court; Joel D. Conway, Judge; affirmed.

Judgment affirmed.

Hardage & Wilson, J. W. & M. House and Patterson A. Reece, for appellant.

The statute of limitation does not begin to run in favor of a policy holder of an insolvent mutual insurance company until notice of an assessment has been given. 135 U.S. 533; 105 U.S. 143; 122 Ill. 630; 4 Blackf. 77; 107 Pa.St. 352; 60 Md 93; 81 Ga. 383; 80 Ala. 159; 87 Ala. 619; 62 Vt. 148; 13 Va L. J. 91; 68 Cal. 353; 2 S.C. 51; 19 Nev. 171.

John H Crawford, for appellee.

1. No complete transcript of the record of the Ohio case was offered in evidence in this case. To show jurisdiction in that court, a certified copy of the judgment alone is not sufficient, but the pleadings and proceedings on which the judgment is founded, and to which, as matter of record, it refers, must be produced. 47 Ark. 120; 70 Ark. 343.

2. This action is barred by the statute of limitation. 68 Ark. 433. Where the liability of the shareholder is immediate and primary, and not contingent on the obtaining of a judgment against the corporation, the statute begins to run in favor of the shareholder when the debt matures against the corporation. Cook on Stock and Stockholders (1 Ed.), § 227 (g); Kirby's Digest, § 5064; 74 Cal. 167; 82 Cal. 653; 92 U.S. 509; Ib. 156; 103 U.S. 442; 97 U.S. 171; 95 U.S. 628.

Appellant's counsel in reply.

Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. Const. U. S. art. 4, § 1. See also U. S. Rev. Stat., § 905. The judgments of the courts of the United States, although their jurisdiction be not shown in the pleadings, are yet binding on all the world. 28 U.S. 207. The jurisdiction will be presumed if the record is silent on the subject; and, when a transcript shows clearly that there has been a judicial determination, the record is absolute verity. 43 U.S. 319, 340; 5 McLean, 167; 7 Col. 562; 31 Conn. 427; 5 Houst. (Del.) 519; 18 Ill. 133; 119 Ind. 103 et seq.; 5 Iowa 301; 37 Kan. 33; 18 La.Ann. 682; 60 Md. 11; 62 Md. 198. A record does not need to set forth all the proceedings in detail. 92 Mass. 488. See also 100 Mass. 411. A complaint on a foreign judgment need not allege jurisdictional facts. 36 Minn. 177; 34 Miss. 330. See also 15 N.H. 15; 83 N.Y. 313; 19 Ohio C. C. R. 687; 27 Pa.St. 479; 36 S.W. 970; 20 Wash. 450.

OPINION

BATTLE, J.

James B. Swing, as trustee for the creditors and policy holders of the Union Mutual Insurance Company, of Cincinnati, Ohio, in a complaint in an action against the St. Louis Refrigerator & Wooden Gutter Company alleged that the Supreme Court of Ohio, on December 18, 1890, disincorporated said insurance company, and afterwards appointed plaintiff the trustee for the creditors and policy holders of the insurance company, and he accepted the trust and qualified, and is acting as such trustee; that said insurance company was a mutual company, and was incorporated under the laws of Ohio on May 27, 1887; that section 3650 of the Revised Statutes of Ohio provides that "every person who effects insurance in a mutual company, and continues to be insured, and his heirs, executors, administrators and assigns, shall thereby become members of the company during the period of insurance, and shall be bound to pay for losses and such necessary expenses as accrue in and to the company in proportion to the original amount of his deposit note." Said Mutual Insurance Company was doing business during the years 1889 and 1890. That the defendant accepted from the insurance company a policy of insurance on its property against loss by fire; that said policy was for $ 4,000, and was in force from May 1, 1889, to May 1, 1890, the annual premium on it being $ 96; that the contingent liability to assessment of the defendant, under the by-laws of the company and the statutes of Ohio and the decree hereinafter mentioned, was and is five times the annual premium, towit, $ 480; that by accepting and holding the policy the defendant effected insurance in the insurance company during the time and in the amount aforesaid, and became a member of the same, and is legally and equitably liable for its just proportion of all unpaid losses and expenses incurred by the insurance company during the life of the policy and to pay such percentage on the amount of the contingent liability to assessment on the policy. That the Supreme Court of Ohio, on the 11th day of June, 1901, assessed the rate of liability of the members and stockholders of the insurance company for the unpaid losses and expenses of the company; that plaintiff, on or about the 6th day of September, 1901, notified the defendant to pay said assessment, but it refused to do so, and is indebted to him as such trustee, on the assessment, in the sum of $ 116.77, with six per cent. per annum interest thereon from 6th of September, 1901.

The defendant, the St. Louis Refrigerator & Wooden Gutter Company, answered and denied that the Supreme Court of Ohio disincorporated the insurance company and appointed plaintiff trustee as alleged, and made and entered a decree of assessment; and alleged that the Supreme Court of Ohio was without jurisdiction to appoint plaintiff trustee for the purposes alleged in the complaint; and pleaded the statute of limitation in bar of plaintiff's right to maintain this action.

In the trial of this action the following was shown to be a statute of Ohio: "Every person who effects insurance in a mutual company, and continues to be insured, and his heirs, executors, administrators and assigns, shall thereby become members of the company during the period of insurance, shall be bound to pay for losses and such necessary expenses as accrue in and to the company in proportion to the original amount of his deposit as they deem necessary, settle and determine the sum to be paid by the several members thereof, and publish the same in such manner as they may choose, or as the by-laws prescribe, and the sum to be paid by each member shall always be in proportion to the original amount of such liability, and shall be paid to the officers of the company within thirty days next after the publication of such notice," etc.

The issuance of the policy, the date, the amount, the premium and the time it was in force were shown to be as alleged in the complaint.

What was said to be the judgment of the Supreme Court of Ohio, without any pleadings or other proceedings, was read as evidence. The defendant recovered judgment, and plaintiff appealed.

The appellee having denied that the Supreme Court of Ohio had jurisdiction to appoint appellant trustee, the duty and the burden devolved upon him to show jurisdiction. He failed to do so. He produced what he called the judgment of the court appointing him trustee,...