Plaintiff in this case asserted in her bill of complaint that she was the owner of an insurance policy issued by the Detroit Metropolitan Mutual Assurаnce Company and that she brought the suit as such, and also on behalf of other policyholders, and said company. The pleading аlleged that defendants Charles C. Diggs, Sr., and Charles C. Diggs, Jr., had heretofore withdrawn, or caused to be charged to the Company, certain moneys that they had used for their private purposes and of which they should be adjudged trustees maleficio. It is unnecessary to itemize the specific claims so asserted.
It appears from plaintiff’s pleading that negotiations were carried on between the Detroit Metropolitan Mutual Assurance Company, hereinafter referred to as Metropolitan, and the Mammoth Life & Accident Insurance Company, a Kentucky stock insurance organization. The latter company for the sake of brevity will be referred to herein as Mammoth. The purpose of said negotiations was to bring about a reinsurance agreement whereby Mammoth would take over the obligations incurred by Metro *432 politan under the policies issued to plaintiff and others, with a corresponding transfer of assets. Such an' agreement was apparently made between the managing officers of the 2 companies and evidenced by instruments referred to in the record as “Deсlaration of Trust” and “Agreement for Maintenance of Business” in which the rights and obligations of the respective parties were speсified in detail. It further appears that a majority of the policyholders, voting thereon, approved the agreement.
Plaintiff averred that the reinsurance program was not conducive to' the best'interests of the policyholders in Metropolitan and she expressed her opposition thereto on the ground that there was no necessity for such action and that it was conceived by defendants Diggs and other officers and directors of Metropolitan for wholly personal reasons on- their part. It was averred in the bill of сomplaint that the steps taken to further the plan were in ■ contravention of the laws of the State of Michigan and the bylaws of Métropolitan. The pleading failed to allege what specific statutory provisions or bylaws had been violated. The insurance commissioner of the State of Michigan was joined as a party defendant and injunctive relief was asked against him tó réstrain him from approving the plan into which the 2 companies had entered. . •
On behalf of defendants, motions to dismiss the bill of complaint were filed and brought on for hearing in сircuit court. Said motions presented the question as to the jurisdiction of the trial court of the subject matter of the action, particular -reference being made in -this respect to plaintiff’s request for the appointment of a “conservator” for Metropоlitan. In this connection attention has been directed to the provision of the statute vesting in the commissioner of insurance sole аuthority to invoke the jurisdiction of the court in receivership proceed-
*433 1962| / ■ -.-Glover. v; Diggs. . '
433
ihgs .aghinst an, insurance company;,-; . CLS.. 1956, § 500.7808. (Stat Ann 1957 Rev § 24.17808).'..The motion to dismiss- as to the commissioner „of insurance was: granted and like • action was taken.-following the hearing of the motion submitted by the, other defendants. Plaintiff has -appealed from, .the .latter order but; apparently acquiesces in the action taken with reference totthe commissioner.’ ->><. ; ■
,. It is conceded.that the agreement between Metropolitan and-Mammoth became effective as a rеsult of the action of the insurance commissioner in approving it,-said order of approval being the. final- step in the' proceedings. Attention is called, by counsel for appellees to the fact that.-no- appeal, from such order;.under the provisions of.;-PA 1952,. No 197 as. attended*, was -made; or attempted:.- -However, -the commissioner of insurance not being a -party to the case .on аppeal, plaintiff’s request for. relief; as against ■ his order of- approval ,of the- reinsurance agreement does not requirе consideration-;:
Was plaintiff entitled to a hearing in. circuit.- court on the basis of- the charges made by her.- against defendants Diggs i ■ The monеys claimed- to ha-v.e been wrongfully appropriated and expended for improper purposes belonged-to Metroрolitan; -which was .not made a.,party to the litigation. The rights 'of plaintiff and other policyhqlders were-dependent.on,the provisions оf..their policies. .The precise.manner in which plaintiff and others in like, situation might benefit by a recovery on behalf of Metropolitan does not appear..from the bill of complaint. The reinsurance agreement,-as before noted, is now in .-force and effect; Obviously the validity thereof cannot be held
* CLS 1956, § 24.101 et seq. (Stat Aim 1961 Rev' § 3.560 [21.1] et
*434 to be a proper matter of litigation in a case in which neither of the contraсting companies is a party.
In support of the claim of right to maintain the present action counsel for plaintiff rely on the deсision of the supreme court of Illinois in
Winger
v.
Chicago City Bank & Trust Company,
394 Ill 94 (
If a suit of this nature, brought by the holder of a policy issued by an insurance company, may be regarded as analogous to an action by a stockholder of a corporation when duly authorized under the law of the State, like rules of procedure must be observed. It is firmly established by prior decisions of this Court that in a so-called stockholder’s suit the corporation is a nеcessary party to the end that it may be bound by the decree rendered. The protection of defendants in such a case neсessitates the holding.
Dean
v.
Kellogg,
The case does not require further discussion. Without reference to other questions involved, it is obvious that necessаry parties were not joined as defendants and, in consequence, the trial court could not properly proceed to a trial of the issues sought to be raised by plaintiff in her bill of complaint. *435 The order granting the motion to dismiss is affirmed, with costs to appellees.