Westchester Fire Ins. Co. v. Coverdale
Decision Date | 09 April 1892 |
Citation | 29 P. 682,48 Kan. 446 |
Parties | THE WESTCHESTER FIRE INSURANCE COMPANY v. W. T. COVERDALE |
Court | Kansas Supreme Court |
Error from Sumner District Court.
ON the 6th day of August, 1888, the Westchester Fire Insurance Company, doing business in this state, issued its policy of insurance for $ 800 on a 2 1/2-story frame building, on lot 5, block 67, in the city of Wellington, owned by W. T Coverdale.
Attached to the policy, and as a part thereof, was the following written "mortgage clause," or stipulation:
The building was destroyed by fire in September, 1888. On the 23d day of April, 1889, W. T. Coverdale brought his action against the Westchester Fire Insurance Company to recover $ 800, the amount of the insurance. His petition alleged, among other things, that the policy of insurance was issued to him in consideration of $ 20 paid by him; that the property therein insured was destroyed by fire in September, 1888; that he had kept and performed the covenants, provisions and conditions of the policy, and that he was entitled to recover from the insurance company on such policy of insurance $ 800, with interest from the 1st of October, 1888. He attached to this petition and made a part of it, as "Exhibit A," the policy of insurance, with the "written mortgage clause," or stipulation referred to. Upon a praecipe filed with the clerk, requesting a summons to issue against the Westchester Fire Insurance Company, and to be directed to the superintendent of insurance of the state, a summons in the following form was issued by the clerk of the district court of Sumner county:
TOM DONOHUE, Clerk of the District Court.
By J. D. DECKER, Deputy."
Indorsed on back: "No. 5182. Summons. W. T. Coverdale, plaintiff, v. Westchester Fire Insurance Company, defendant.
If the defendant fail to answer, the plaintiff will take judgment for $ 800, with interest thereon at the rate of 7 per cent. per annum from the 1st day of October, 1888, and costs of suit.
TOM DONOHUE, Clerk.
By J. D. DECKER."
Hon. D W. Wilder, the superintendent of insurance for the state, after receiving the summons, returned to the district court that he had received the same on the 23d day of April, 1889, at 3 o'clock P. M.; that he forwarded a duly-certified copy thereof on the 25th day of April, 1889, to Mr. J. G. Underhill, the secretary of the Westchester Fire Insurance Company, of New York, at New York city, there being no general agent of the company in this state. Subsequently, Messrs. Ware, Biddle & Cory, attorneys at law, made a special appearance for the insurance company, and asked that the summons, service and return thereof be set aside, upon the ground that the summons was not issued in conformity with law, and that the service and return thereof were not sufficient. On the 7th day of June, 1889, the motion to quash the summons and to set aside the service and return thereof was overruled, in the...
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