36 Cal. 542 | Cal. | 1869
Lead Opinion
Briggs obtained a money judgment against McCullough and others, on which an execution was duly issued. After proper proceedings in that behalf, McCullough was ordered to appear before a referee, appointed by the Court for that purpose, to be examined touching his property. In the course of his examination before the referee he admitted that he had deposited with the Pacific Mutual Life Insurance Company of California the sum of two thousand nine hundred and thirty-three dollars in gold coin, and took from said company an agreement, called an “ endowment policy,” whereby the company agreed to pay him or his assigns, on the 6th day of July, 1878, (or sooner if he should die,) the sum of three thousand five hundred dollars in United States gold coin, together with such dividends as his deposit should earn. He also admitted that said policy was in his possession and was his property; and thereupon the referee made an order that McCullough deliver the policy to the Sheriff, as property to be applied on the judgment of Briggs. McCullough refused to obey the order, which fact was reported by the referee to the Court which rendered the judgment; and thereupon the Court cited McCullough to show cause why he should not be punished for a contempt, and on the rule to show cause, (in obedience to which McCullough had appeared,) the Court, after hearing the matter, found the facts to he as already stated, and adjudged McCullough to he guilty of a contempt, and entered an order that he be imprisoned, without hail, until he obeyed and complied with the order of the referee. From this order McCullough has appealed.
At the hearing, a motion was made to dismiss the appeal; hut without expressing any opinion on this point, we deem it best to dispose of the case on its merits. The counsel for McCullough claim that the policy of insurance in question is exempt from execution, under an Act of the Legislature of March 28th, 1868, (Stats. 1868, p. 500,) which provides
In order to secure the benefit of this provision, it must appear:
First—That the insurance was made by an insurance company “incorporated under the laws of this State.” This fact does hot appear in this case. The company which issued the policy is designated in the proceedings as the “Pacific Mutual Life Insurance Company of California;” but for aught that appears, this may be only the name of a private joint stock association, or, at most, of a foreign corporation doing business in this State. The mere name under which it does business raises no presumption whatever that it is an incorporated company; and certainly none that it was “incorporated under the laws of this State;” nor is there any other proof of the fact in the ease.
Second—It must appear that it is an “insurance on the life of the debtor,” and it is urged that the policy in this case is not an insurance, on the life of McCullough in the sense of the statute, but is simply a covenant by the company, that in consideration of a certain sum deposited by McCullough, the company will pay him at the expiration of ten years, or sooner, if he dies, a certain other stipulated sum, together with such dividends as his deposit shall, in the meantime, have earned. The term “life insurance” is not alone applicable to an insurance for the full term of one’s life. On the contrary, it may be for a term of years, or until the assured
Third—It must appear that the policy is not of the excepted class mentioned in the proviso to the statute, and the party claiming the exemption must show affimatively that his case is within the provisions of the statute. To do this, it was incumbent on McCullough to establish that the benefits which he is to derive from the policy are such as might have been secured by the payment of an annual premium not exceeding five hundred dollars.
Ho effort was made to do this, and there is nothing in the case from which we can infer the fact. In the absence of all proof, we cannot presume that this or any other insurance company would have issued this or any other policy, securing to McCullough the same “moneys, benefits, rights, privileges, and immunities” which this policy secures, by the payment of an annual premium of five hundred dollars. Having failed to establish a case which entitles him to the
Judgment affirmed,
Concurrence Opinion
I concur in the judgment upon the first and third grounds considered by Mr. Justice Crockett.
