46 Minn. 130 | Minn. | 1891
This was an action brought to recover upon an insurance policy issued by the defendant, a corporation organized under the laws .of this state, and engaged in the business of insuring livestock. When the plaintiff rested his case, defendant corporation moved to dismiss on the ground that plaintiff had failed to make out a cause of action, which motion was denied. The defendant offered no testimony, and thereupon the court directed and a verdict was returned against it. The appeal is from an order denying a new trial.
By the terms of the policy, the loss, if any, was made payable to one George C. Huntington, mortgagee, as his interest might appear, and Huntington was named as a defendant in both summons and complaint. It was alleged in the complaint that on April 5,1888, before the day on which the policy was issued, plaintiff had duly made and delivered to the Huntington mentioned in the policy a mortgage upon the animal insured, to secure the payment of plaintiff’s promissory notes in an
• It is asserted in the respondent’s brief, and the same statement was made on the oral argument, that payment of the full amount due on the notes, and, further, that neither of the defendants Huntington and Ross had or claimed to have a lien upon the horse, or any rights whatever by virtue of the policy, stood admitted by their failure to answer in the action. This position would be unassailable if it appeared from the return to this court, or if it had been conceded upon the argument by appellant’s counsel, that the parties named had been served with the summons, or had appeared in the case, and at the time of the trial were in default. Eut there is absolutely nothing in the record from which it can be gathered that either Huntington or Eoss had been advised of the pendency of an action upon the policy in which they were named as defendants. It cannot be presumed, and in the appellant’s brief, as well as upon the argument, it was asserted to the contrary.
We have not overlooked the proposition made by respondent’s counsel, that a’mortgagor may sue upon a policy in his own name, by permission of a mortgagee to whom a loss, if any, is made payable; and the further statement in,the brief that such permission, being alleged in the complaint and not denied by the answer, stands admitted. The trouble here is -that it was nowhere alleged in the complaint that the mortgagee had permitted the mortgagor to bring an action in his own name, or had consented to it, or even that he had any knowledge of it. The mortgagee and his alleged assignee were made defendants, the claim being that they had no further right or interest in the insured property. Nor have we overlooked the proposition that, as the case was tried about 16 months after the death of the horse, the time within which the mortgagee could bring an action under the provisions of the policy — six months from the
Order reversed.
Note. A motion for a reargument of this case was denied May 21, 1891.
Mitchell, J., being necessarily absent, took no part in this decision.