Hays v. Lycoming Fire Insurance

| Pa. | May 22, 1882

Mr. Justice Trunkey

delivered the opinion of the court, May 22d 1882.

It has already been determined that the plaintiff’s judgment is not upon the claim of a member of the company; that, as to persons insured for cash premiums, the premium-notes of its members, held by the company, are its capital stock; and that the plaintiff is entitled to an execution attachment against unpaid assessments, levied on the premium notes of its members, in order to collect his judgment: Hays v. Lycoming Fire Insurance Company, 2 Out. 184. The question now presented is, whether assessments on the premium notes of the garnishee, made during the pendency of the attachment suit by the receiver of the company, are bound by the attachment. It can hardly bo denied, that if so bound, the plaintiff is entitled to recover and collect the money from the garnishee. If by virtue of the writ of attachment, he is entitled to the debt attached, neither the company defendant, if still in being, nor the receiver, if the company has been dissolved, can collect the money for him against his will. A receiver has no right to property of the defendant which was taken in execution before his appointment. This proceeding was pending at the time and before the civil death of the company. It is by no means the case of an execution, or an attachment, issued and levied after the appointment of the receiver.

The garnishee gave his notes to the defendant, to be paid in such portions and at such times as the directors may, agreeably to the act of incorporation, require. The losses by fire occurred, and this judgment for one of said losses was obtained prior to the proceedings for dissolution of the company. Before its dissolution, the garnishee became indebted on his premium notes for the proportionate sum necessary for payment of said losses, and nothing remained to be done, except to ascertain the proper amount of his indebtedness, prior to his liability to an action to enforce payment. The writ of attachment was issued and served before the dissolution of the company, and the debt owing to the defendant by the garnishee became bound by it. After the receiver was appointed by order of the court, he ascertained the measure or amount of the debt which had been levied upon by the attachment of the 'plaintiff.

A garnishee is liable for money belonging to the defendant in the attachment which is received by him after service of the writ: Sheetz v. Hobensack, 20 Pa. St. 412. When the defendant is a corporation, and has been dissolved, and a receiver appointed, the case would be different with respect to money so received after the dissolution. But if a debt was attached before the dissolution and appointment, though not due, it will be held as if due, the garnishee having the right to withhold payment till it becomes due ; and if the debt was subject to a condition, he may hold the money until the performance of the condition. In such cases, an existing debt is attached, though not presently due, or some action is necessary to ascertain its amount.

The liability of a member of a mutual insurance company on his premium note is not absolute for payment of its whole amount, but is conditional, and depends upon the contingency of the happening of losses and expenses, to which he shall be liable to contribute, which have been duly ascertained by the directors, and which make necessary a resort to ' an assessment thereon. It is a credit given for a part of the consideration of the contract. The promise of the insured is to pay upon such conditions, and the existence of the conditions must be established officially before a call for the payment of the note or any part thereof can be enforced : May on Ins. § 557. The assessments, in pursuance of the contract, fix the amount the insured shall pay on his note. He may be liable for the whole of it. How much, depends upon the losses and expenses for which he is bound to contribute, to be ascertained by the directors of the company, or, if it has been dissolved, by the receiver. The debt owing by the garnishee was attached, its amount has been ascertained by the assessments, and the plaintiff’s third point should have been affirmed, namely, the garnishee became liable upon his premium notes when losses by fire occurred, and this attachment covers assessments levied by the receiver on said notes for his proportion of the losses.

In some respects an execution attachment differs from a foreign attachment. Primarily, the latter is to compel an appearance, to obtain judgment against the defendant, and should judgment be obtained by default, the defendant afterwards may appear and disprove the debt. But an execution attachment is for collection of a judgment already obtained. By this writ, debts owing to the defendant “ may be attached and levied in satisfaction of the judgment, in the manner allowed in the case of a foreign attachment.” It is none the less an execution, because the manner of proceeding is prescribed, in which the garnishee may have an issue and trial for adjudication of the question of his indebtedness. The defendant may, if he can, show that the judgment has been paid, or that the thing attached is not liable to be taken in execution, but he cannot disprove the debt or impeach the judgment. That stands till satisfied. If the judgment be against a natural person, and he die, or against a corporation, and it be dissolved, it remains, and property which had been seized in execution before the death or dissolution, may be held against the administrator or receiver. Judgment cannot be rendered against the dead. The civil death-of a corporation béfore judgment in a foreign attachment against it, dissolves the attachment, and the garnishee may take advantage of this by pleading it, notwithstanding judgment had been entered of record after such death for default of appearance : Farmers’ & Mechanics’ Bank v. Little, 8 W. & S. 207. But where judgment was obtained against a living corporation, an attachment execution issued thereon and served before dissolution of the corporation will not be set aside. The action against the garnishee does not abate, and "the receiver may show just what the corporation could show', if not dissolved, for the purpose of defeating the attachment.

Judgment reversed, and judgment is now rendered for the plaintiff, for ninety-six dollars, due to the defendant by the garnishee, and attached in his hands ; arid if the garnishee neglect or refuse to pay the same on demand by tlie sheriff, then the same, with costs upon his writ, to be levied of the goods and lands of the garnishee, as in case of a judgment for his proper dent, and that the garnishee be thereupon discharged as against the defendant, as to the sum so attached and levied.