149 Mich. 626 | Mich. | 1907
This is another chapter in the litigation reviewed by us in Nichol v. Murphy, 145 Mich. 424. The statement in that opinion will supplement the statement in this. In 1899 proceedings were instituted in the circuit court for the county of Jackson, in chancery, to wind up the affairs of the Citizens’ Mutual Fire-Insurance Company, one of the above-named respondents. In these proceedings Forrest C. Badgley was appointed receiver, and upon his petition a pro rata assessment was made against those having policies in said company — of whom petitioner was one — for a sufficient amount to pay the indebtedness of the company and the expenses of the receivership. February 17, 1906, Badgley resigned as receiver. His resignation was accepted and John Nichol of Ionia
Petitioner assails the above-mentioned orders upon two grounds. First, because of certain irregularities disclosed by the record. Second, because of an alleged collusive arrangement between Badgley, the retiring receiver, Nichol, his successor, and the creditors of the insolvent corporation.
The irregularities disclosed by the record were brought to our attention last November in plaintiff’s application for a mandamus to compel the vacation of the order transferring said cause from Jackson county to Ionia county. The order of transfer was made in February and the application for mandamus was not made until November, and in the ensuing interval important orders had been made and important action taken upon the assumption that the circuit court for the county of Ionia, in chancery, had jurisdiction. In our opinion the circumstances — and among these circumstances may be mentioned petitioner’s
The circumstances respecting the alleged collusive agreement are these: The attorney representing all the creditors procured Badgley’s resignation, though Badgley had already determined to resign and it was eminently proper that he should; he procured the consent of Nichol to act as receiver; he induced the commissioner of insurance to file a petition asking the appointment of Nichol as receiver ; he has acted as Nichol’s attorney since the latter’s appointment as receiver, and in that capacity he procured the order transferring said cause. There was, however, no understanding that Nichol, as receiver, should do anything to favor the creditors, or that he should be in any way faithless to his receivership duties; and we are satisfied that he has been faithful to those duties. Nor was there any impropriety in the order transferring the cause. The cause should have been transferred from the Jackson circuit for the judge of that circuit was disqualified. The selection of the circuit to which it should be transferred was made and had to be made by the judge — in that instance the judge of the Ionia circuit sitting in the Jackson circuit — who ordered the transfer. That judge was not a party — indeed this is not claimed — to any collusive arrangement, and no improper means were used to induce him to make said selection. The selection itself was not an improper one nor prejudicial to the interests of any of the parties concerned in the litigation. The arrangement
Complaint is also made that the second assessment is excessive. If this complaint is meritorious, and we are by-no means convinced that it is, adequate relief can be had by vacating it or by securing a proper distribution of the funds raised by assessment. It does" not justify the filing of a bill of review.
The order appealed from should be affirmed.