Universal Life Ins. Co. v. Catchings

• Decision Date: 19 February 1934
• Docket Number: 31056
• Court: Mississippi Supreme Court
• Parties: UNIVERSAL LIFE INS. CO. v. CATCHINGS

152 So. 817

169 Miss. 26

UNIVERSAL LIFE INS. CO. v. CATCHINGS

No. 31056

Supreme Court of Mississippi

February 19, 1934

Division B

1 INSURANCE.

Judgment creditor, in suggestion of garnishment against foreign insurance corporation, need not allege that garnishee is authorized and is doing business in state, but must prove such fact (Code 1930, section 1838 et seq.).

2 INSURANCE.

Certified copy of appointment of state insurance commissioner as agent for foreign insurance corporation for service of process held sufficient proof of such fact as basis for service of writ of garnishment (Code 1930, section 1838 et seq.; section 5165 third par.).

3. INSURANCE.

Word "liability," within statute authorizing appointment of state insurance commissioner as agent of foreign insurance corporation for service of process, held not confined to contracts alone, but to any liability cognizable in courts (Code 1930, section 5165, third par.).

4. INSURANCE.

Appointment of state insurance commissioner as agent of foreign insurance corporation for service of process cannot be revoked as long as there is any outstanding liability against insurance corporation in state (Code 1930, section 5165, third par.).

5. STATUTES.

Provisions of statute must be construed together to make reasonable scheme, unless such construction would read out of statute some one or more of its substantial provisions.

6. GARNISHMENT.

Judgment creditor may, if facts justify it, suggest any one or more of four grounds for garnishment (Code 1930, sections 1838, 1840).

7. GARNISHMENT.

Suggestion of garnishment, alleging only two of statutory grounds, instead of all four grounds, held sufficient (Code 1930, sections 1838, 1840).

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Copiah county, HON. E. J. SIMMONS, Judge.

Action by Mattie Catchings against the Woodmen Union Life Insurance Company, wherein the plaintiff obtained a judgment against the defendant and filed a suggestion of garnishment against the Universal Life Insurance Company. From a judgment against the garnishee and in favor of the plaintiff, the garnishee appeals. Affirmed.

Affirmed.

Howie & Howie, of Jackson, for appellant.

There are no averments in the pleadings setting forth the facts before the court that the Universal Life Insurance Company was authorized to do business in the state of Mississippi at the time the writ of garnishment was served upon the Insurance Commissioner of the state of Mississippi, or that the Universal Life Insurance Company was doing business in the state of Mississippi at the time the writ of garnishment was served upon said Insurance Commissioner, or that the Universal Life Insurance Company had ever done business in the state of Mississippi.

Under the law and the decisions of this court the circuit court of Copiah county was without jurisdiction to render a default judgment against the appellant in this cause.

Globe Rutgers Fire Ins. Co. v. Sayle, 65 So. 125, 107 Miss. 169; National Surety Co. v. Board of Supervisors of Holmes County, 83 So. 8, 120 Miss. 706; Continental Casualty Co. v. Gilmer, 111. So. 741, 146 Miss. 22; Travelers' Ins. Co. v. Inman, 126 So. 399, 157 Miss. 810; Ex Parte Latham, 136 So. 625, 161 Miss. 342.

This is not a proceeding on a declaration with sufficient averments therein reciting jurisdictional facts, but is a mere proceeding of garnishment under which there was no proof of service of process against a nonresident corporation, and no averment that the appellant was licensed to do business in the state of Mississippi, or that it was authorized to do business in Mississippi, or that it was engaged in business in the state of Mississippi.

The failure of these averments in any of the pleadings was not cured by any testimony being introduced in open court, as there was no testimony taken on the hearing of this cause, and, therefore, there was none before the court with which it could properly render a judgment in this cause.

W. S. Henley, of Hazlehurst, for appellee.

Section 5165, Code of 1930, provides exactly how the appointment of said attorney for process shall be proved, and it will be also noted that the exact method provided for by the statute has been followed in this case.

In this case the plaintiff has done exactly what was lacking in the three cases, depended upon by counsel for appellant, and the cases cited as a matter of fact are authorities for the appellee, instead of for the appellant.

Every presumption is indulged in favor of the validity of this judgment, and especially with reference to the service of process.

15 R. C. L. 888, 889.

The very fact that the power of attorney was filed in accordance with the laws of the state of Mississippi, authorizing said Insurance Company to do business, in the state of Mississippi, and the fact that it never abandoned it is proof that said company was doing business in the state of Mississippi.

Argued orally by W. B. Fontaine, for appellant, and by W. S. Henley, for appellee.

OPINION

Anderson, J.

The question involved is the validity of a default judgment in favor of appellee against appellant, as garnishee on a judgment in favor of appellee against Woodmen Union Life Insurance Company, in the sum of two thousand eighty-four dollars. From that judgment appellant prosecutes this appeal.

On July 29, 1932, appellee obtained a judgment in the circuit court of Copiah county against Woodmen Union Life Insurance Company in the sum of two thousand eighty-four dollars. The judgment remaining unsatisfied, on June 24, 1933, appellee filed in the cause a suggestion of garnishment against appellant. The suggestion recited the recovery of the judgment by appellee against the Woodmen Union Life Insurance Company, the date of the judgment, and stated that appellant was indebted to the judgment debtor, or had in its possession assets belonging to the judgment debtor, and prayed the issuance of a writ of garnishment against appellant as provided by law. On the same day the suggestion was filed the clerk of the circuit court of the county issued and put into the hands of the sheriff of Hinds county a writ of garnishment. The writ recited substantially the contents of the suggestion for garnishment, followed with a command to the sheriff to summon appellant to appear at the next term of the circuit court of Copiah county and answer on oath in writing whether it was indebted to the judgment debtor at the time of the service of the writ of garnishment, or at any time since; if so, what sum; whether due or not, and when due, or to become due; and how the indebtedness was evidenced; what interest it bore; what effects of the judgment debtor it had in its possession at the time of the service of the writ or since its service, or under its control; whether it knew or believed that any other person was so indebted to the judgment debtor, and, if so, whom and in what amount, and where such person resided, and whether it knew or believed that any other person had effects of the judgment debtor in his possession or under his control, and, if so, whom and where he resided.

The sheriff of Hinds county made the following return on the writ: "I have this day executed the within writ personally on the within named defendant, Universal Life Insurance Company, by delivering a true copy of said writ to Geo. D. Riley, Insurance Commissioner for the state of Mississippi, and attorney for process for the said nonresident defendant, this the 24th day of June, 1933."

At the return term of the writ of garnishment there was filed in the cause a copy of the appointment by appellant of the insurance commissioner of this state as its agent for the service of process, and also a copy of a resolution of appellant's board of directors authorizing such appointment, both certified to by George D. Riley, insurance commissioner of this state, as being true copies of such appointment and resolution as shown by the records of his office. Appellant's appointment of the insurance commissioner as its agent for the service of process recites among other things, that "this authority shall continue in force and irrevocable so long as any liability of the said company remains outstanding in the said state of...