International Savings & Trust Co. v. Kleber, Appeal, No. 247

Appeal, No. 247 | Pa. Super. Ct. | Oct 9, 1905

Opinion by

Beaver, J.,

1. If there is anything clearly and definitely settled by our late cases, following those of the Supreme Court, it is that, “ Assessments levied by the court, after the appointment of a receiver of a mutual insurance company, are conclusive, both as to their necessity and amount, and cannot be questioned in either respect in a collateral proceeding to recover same from a policy holder whose duty it is to pay to the company the proportionate share of losses incurred up to the time of his withdrawal : ” Stockley, Receiver, v. Riebenack, 12 Pa. Super. 169" court="Pa. Super. Ct." date_filed="1899-12-16" href="https://app.midpage.ai/document/stockley-v-riebenack-6272759?utm_source=webapp" opinion_id="6272759">12 Pa. Superior Ct. 169 ; Kramer, Receiver, v. Boggs, 172 Pa. 91" court="Pa." date_filed="1895-11-04" href="https://app.midpage.ai/document/capital-city-mutual-fire-insurance-ex-rel-kramer-v-boggs-6243321?utm_source=webapp" opinion_id="6243321">172 Pa. 91.

2. It was not necessary that the defendants should be made a party defendant in the bill in equity, asking for the appointment of a receiver. It was said in Eichman, Receiver, v. Hersker, 170 Pa. 402" court="Pa." date_filed="1895-10-07" href="https://app.midpage.ai/document/eichman-v-hersker-6243195?utm_source=webapp" opinion_id="6243195">170 Pa. 402, at page 412 : “ Nor does it affect the finality of the decree that the defendant was not made by name a party to Lowenstein’s bill in equity and was not notified of the application for authority to lay the assessment. The court below properly decided that making the company a party was sufficient. Service on the proper officers of the corporation made every policy holder a party and the answer of the company, not before decree dissented from, will now, after decree unappealed from, be deemed as concurred in by the policy holder.”

3. As to the failure to comply with the requirements of paragraph 10, sec. 5, of the Act of April 4, 1873, P. L. 20, relating to the establishment of 'an insurance department, which is as follows: “ The insurance commissioner is hereby empowered to institute suits and prosecutions, either by the attorney general or such other attorney as the commissioner may designate, for any violation of this act; and the commissioner shall be made a party to any proceedings instituted for the purpose of closing up the affairs of any company, when the same shall not be in the name of the commonwealth;” it is perhaps enough to say that this was evidently intended for the protection of the insurance department and that, if the insurance commissioner does not object, it is not for the defendant to raise the question. However, it appears from the petition of the commissioner filed in this case, to be made a party as of the time of the filing of the bill, he was informed thereof “ and agreed thereto, being fully informed of the necessity therefor.” Whether the opinion of the insurance department M that such joinder is not necessary in the ease of a mutual insurance company ” is correct or not, as a matter of fact by the decree of the court he was made a party to the bill as of the time of its filing. We can see no error in this and certainly none of which the defendant can complain.

4. The plaintiff claims in his statement as follows : “ In accordance with the tables attached to the said petition, the assessment of the said defendant upon the amount of insurance which he carried for the time in which his policy was alive, together with 31 f0 thereupon, as directed by the said order, is $422.65. From this amount of $422.65 is to be subtracted $136.47, it being the amount the said defendant paid in to the said company. The balance thereof, amounting to $286.18, is the total amount due by the defendant to the plaintiff in this cause of action, and there are no set-offs or counterclaims of any kind to the said amount. The said defendant was duly notified of said assessment and has neglected and refused and still neglects and refuses to pay the same.” The affidavits of defense set forth no facts which, taken together, would constitute a defense peculiar to the defendant. The most of the allegations relate to the questions which have already been disposed of and we find nothing which raises a question of fact to be submitted to a jury.

We allowed the appellant’s paper-book to be amended, so as to have the one assignment of error in the case before us, but both it and the statement of the question involved are very unsatisfactory. The assignment of. error which is “ First. The court below erred in making the rule for judgment absolute ” contains no specification as to the error alleged, and compels us to seek for the same in pleadings.

No help is given us by the statement of the question involved which is presented under two heads : “ First. Did the affidavit of defense raise questions of fact which should have been submitted to a jury by the court below ? Second. Did the court below err in the entry of judgment ? ” This statement is no more enlightening than the assignment of error and we finally go to the argument of the appellant to ascertain what the grounds upon which he complains of the court were. We have endeavored to dispose of them as fully as they are disclosed but fail to find anything of which the appellant has just reason to complain.

Judgment affirmed.