Weigen v. Council Bluffs Ins. Co.

• Decision Date: 21 January 1898
• Citation: 104 Iowa 410,73 N.W. 862
• Parties: WEIGEN v. COUNCIL BLUFFS INS. CO.
• Court: Iowa Supreme Court

104 Iowa 410

73 N.W. 862

WEIGEN

v.COUNCIL BLUFFS INS. CO.

Supreme Court of Iowa.

Jan. 21, 1898.

Appeal from district court, Howard county; L. E. Fellows, Judge.

Action on insurance policy. Trial to court. Judgment for plaintiff, and defendant appeals.Flickinger Bros. and John McCook, for appellant.

H. T. Reed, for appellee.

LADD, J.

This action was begun November 9, 1895, on an insurance policy issued by the defendant November 6, 1894, covering furniture, fixtures, and merchandise which were destroyed by fire May 13, 1895. The contract of limitations had not run. Read v. Insurance Co. (Iowa) 72 N. W. 665. In the view taken, it becomes immaterial whether Nason was an adjusting agent for defendant, or what he said or did; for, if the existence of the mortgage was not a violation of the conditions of the policy, the failure to disclose it in the proof of loss, if shown, would not amount to fraudulent concealment forfeiting all claims against the company. Only the remaining errors assigned will be considered.

2. In the second count of the answer the defendant alleged that on June 5, 1895, W. W. Loomis was appointed receiver and took possession of all the property and papers of the defendant company, and has since continued in the exercise of his duties as such; that said receiver is a necessary party to the determination of this controversy; that the court entered an order requiring all claims against the defendant to be filed with the receiver before October 5, 1895, and that of plaintiff has never been so filed. To this count the plaintiff demurred on two grounds: (1) This action is against the company, and the appointment of the receiver is no defense; (2) the failure to file the claim with the receiver is not a defense against the company. The appellant complains of the action of the court in sustaining this demurrer. It will be observed that there is no allegation that the corporation has been dissolved, or that the court, in appointing the receiver, enjoined it from exercising any of its corporate powers. No statute of this state limits the powers of a corporation upon the appointment of a receiver, and those of the defendant were restrained only by depriving it of its property. The right to sue and be sued, conferred by the statute, was retained. No relief was asked against the receiver, and he was not a necessary party, though he might, in the discretion of the court, be permitted, by intervening, to interpose any proper defense to the action. The authorities seem in entire harmony on these propositions. See 20 Am. & Eng. Enc. Law, 253; Allen v. Railroad Co., 42 Iowa, 683.

3. The policy contains this clause: “If there be now or hereafter any mortgage, judgment, lien, or incumbrance on or against the whole or a part of the property hereby insured,” then the policy shall be void. The plaintiff executed to his brother, A. O. Weigen, a chattel mortgage, February 20, 1895, covering the goods insured and destroyed by fire, securing the payment of $899.25, which was duly recorded. Eight...