149 N.E. 559 | Ind. | 1925
Appellee, as plaintiff, brought suit against appellant, as defendant, on a judgment which he had recovered by default, in 1916, against "The Loyal Protective Association," the 1. complaint in this action alleging that the judgment was recovered against the defendant company by that name, that it was duly rendered, and that the amount thereof was due and unpaid. The only answer was a general denial. Judgment was rendered in favor of appellee, from which this appeal was taken. Overruling the motion for a new trial is the only error assigned, under which appellant specifies the admission in evidence, over its objection, of each of five questions and the answers thereto, in the deposition of Francis R. Parks, the secretary of the defendant company. One of the matters in issue was whether or not the judgment really was recovered against the defendant company under the name of the Loyal Protective Association, in an action to enforce a demand against it in which summons was served on it, though it was designated therein by the other name. The questions and answers objected to had reference to the reinsurance by the defendant company of all business of the Loyal Protective Association, in 1909, at which time, as shown by evidence admitted without objection, the association ceased to do business, an undertaking at that time on the part *42 of the defendant company to assume the risk on all outstanding policies of the association, a contract which it then offered to make with all holders of such policies to carry their insurance, and the fact that, after 1909, all premiums paid on such policies were paid to and received by the defendant company, and all claims arising out of such policies that were continued in force were paid by the company. These facts were pertinent on the question whether or not a suit for unpaid benefits accruing under a policy in 1916 was really against the company which had made the contract of reinsurance, although the association which originally issued the policy was named as defendant. No error was committed in overruling the objections to these questions and answers.
It is further specified as error that the decision is not sustained by the evidence and is contrary to law, counsel for appellant insisting that there was no evidence that the 2, 3. justice of the peace had acquired jurisdiction of appellant under the name of the Loyal Protective Association at the time of rendering the judgment sued on. The record of the justice of the peace showed that the suit in which that judgment was recovered was an action on a policy issued in 1905 by The Loyal Protective League; that the complaint alleged "that on or about March 23, 1916, defendant tendered to plaintiff its check number 75977, in the sum of $30.00, in full payment of the claim herein sued on, which check plaintiff refused to receive in payment of said claim, and plaintiff now brings said check into court and tenders same back to defendant"; that the check thus tendered purported to be executed by the defendant company by its correct name; that summons in that action was served on a man who was shown by other evidence to have been engaged in collecting premiums on outstanding policies for said *43 defendant company, and soliciting insurance for it in the township and county where the suit was brought, in which township he resided and had an office, from the time when the defendant company was organized in 1909 down to that time; that in 1909, the Loyal Protective Association had ceased to do business and the defendant company had then taken over all of its business and assets, and reinsured all of its policy holders, subject only to the continuance on their part of the payment of premiums, and thereafter had paid all claims which accrued on such policies. And that both the association and the defendant company were foreign corporations of the State of Massachusetts. Nothing was shown tending to explain away or refute the inference which the trial court drew that appellee had a claim against the defendant company for benefits under a policy issued by The Loyal Protective Association and reinsured by the company, and that he brought suit thereon against the company by the name of the association, and caused summons to be served on the agent who then represented the defendant company in that township. No formality is required in the pleadings before a justice of the peace or in the record made by him. And we think the facts proved fairly tended to support the inference which the court drew.
The judgment is affirmed.