93 N.Y.S. 1048 | N.Y. App. Div. | 1905
The respondent, while contending that the facts found as shown by the judgment roll of the court in North Carolina established that the defendant was doing business in that State at the time of the service of process within the authority of Mutual Reserve Fund Life Association v. Phelps (190 U. S. 147) and cases there cited, and that the designation of the agent alone was sufficient; also contends that he had a right — when the jurisdiction of the court upon the face of the judgment roll was questioned, before the Phelps case had been reported and before the decision in Woodward v. Mutual Reserve Life Ins. Co. (84 App. Div. 324) had been reversed (178 N. Y. 485) — to introduce further evidence on the trial here tending to save the cases from the doctrine announced by this court in the Woodward case. The appellant contends that the jurisdiction of the court cannot be sustained by evidence dehors the record; and that it was error to receive this evidence. In the view we take of the case it is unnecessary to decide these questions,
It lias been held not only by the Supreme Court of North Carolina, but by the Supreme Court of the United States and by our Court of Appeals as well, that this power of attorney.was not revocable by the discontinuance by the defendant of business within the State or otherwise so long as any liability of the company to citizens of North Carolina existed, and that the attempted revocation was futile. (Moore v. Life Association, 129 N. C. 31; Biggs v. Life Association, 128 id. 5; Mutual Reserve Fund Life Association v. Phelps, 190 U. S. 147; Woodward v. Mutual Reserve Life Ins. Co., 178 N. Y. 485.) With that proposition settled in favor of the plaintiff, the only questions requiring consideration on these appeals are whether the respective judgment rolls show service of process upon the Commissioner of Insurance, and, if not, whether the Superior Court of North Carolina, being a court of general jurisdiction, it will be presumed that service of process was-duly made. The defendant contends that it was essential to the jurisdiction of the North Carolina court that- the defendant was doing business within the State at the time of the service of process. _ It appears to us, however, that this point requires no further consideration, for it necessarily follows from the decision in the Woodward and Phelps Cases (supra) that the courts of North Carolina could obtain jurisdiction over this defendant by service of process on the Commissioner of Insurance, regardless of its continuing to do business in that State, and such is clearly the effect of the power of attorney which it filed pursuant to the requirement of the statute.
In each of the eases now under consideration, as appears in the. statement of facts, the court found, on the preliminary motion to set aside the service of the summons and dismiss the action, that the defendant duly filed a power of attorney with the Commissioner of Insurance, as required by the statute; that the summons was duly served upon him as required by the statute, and by him duly forwarded to the defendant, and in the final judgment it is recited that the summons was duly served upon the defendant. There can be
In each of these cases an additional allowance of costs has been awarded to plaintiff; we think these allowances' were properly made.
It follows that the determination in each case should be affirmed, with costs.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred. .
Determination affirmed, with- costs.
