This case grows out of insurance litigation which has engaged the attention of courts of this State for nearly twenty years. There are two branches of this litigation commonly known as the 10 per cent cases and the 16% per cent cases. The instant *905 case was brought in the circuit court of Osage County by the present Superintendent of Insurance to recover the sum of $14,510, paid to defendant under orders of the circuit court of Cole County in one of the 10 per cent cases. Judgment was for defendant and plaintiff has appealed.
The facts are not disputed and, in brief, are as follows: in 1922 the then Superintendent of Insurance made an order for a ten per cent reduction in insurance rates. Certain companies resisted this order in the circuit court and on appeal in this court where the reduction order was finally upheld in 1926 in Aetna Ins. Co. v. Hyde,
The companies collected the old rates until August 8, 1929; after which they made partial refunds to policyholders. In 1930 the Superintendent filed a motion in this court, claiming that the companies had not made complete restitution and asking this court to compel restitution and collect and administer the fund. We denied the motion. [
In. the present suit the Superintendent seeks to recover the aggregate amount of monthly payments received by respondent as attorney for the referees under the orders above mentioned.
*906 On this appeal both parties contend that equitable defenses set up in respondent’s answer have converted this action into a case in equity. Whether or not this is so is immaterial, for the facts are undisputed and only questions of law are presented.
Respondent contends that the circuit court of Osage County was without jurisdiction to entertain the cause; that if the Superintendent is entitled to recover he' must do so by motion in the original case in the circuit court of Cole County. On this point, respondent cites a number of cases, only one of which is discussed in the argument portion of his brief, to-wit: Gregory v. Bank (Mass.),
We have heretofore held that the circuit court of Cole County was without jurisdiction to administer' this fund or to order disbursements therefrom. We have also held that the Superintendent of Insurance is the lawful custodian of the fund and the unexpended portion thereof is now in his possession. It seems clear, and we so hold, that the circuit court of Osage County had jurisdiction of the instant suit. [2 R. C. L. 297, and cases above mentioned.]
By the majority opinion in Aetna Ins. Co. v. O’Malley,
*907 Respondent says that a certain portion of the excess premiums was collected by the insurance companies prior to June 25, 1923, the effective date of Section 5874, Revised Statutes 1929, and that as to the portion so collected that statute does not apply.
In the case last mentioned we held that this section is a procedural statute and governs the administration of the fund from its effective date. The fund in question did not come into existence until many years after the effective date of the statute. At the time Messrs. Cook and Lauf were appointed the statute was in full force and provided for the distribution of the fund by the Superintendent and not by custodians appointed by the court.
The record shows that more than $800,000 was collected by Cook and Lauf as interest on the excess premiums for the time such excess was retained by the companies; also that Cook and Lauf collected from the companies the sum of $200,000 over and above the amount of excess premiums and interest found to be due from them. Respondent says that a proper construction of Section 5874, supra, did not require that this interest and this additional sum be turned over to the Superintendent and that the administration of such portions of the fund was within the court’s jurisdiction and chargeable with respondent’s compensation.
Of course, the interest collected is governed by the same.principles that apply to the excess premiums refunded by the companies. All this money was collected for the benefit of the policyholders and, if the Superintendent is the lawful custodian of the principal sum, he is also the custodian of the interest. That also applies to the additional sum of $200,000, judgment for which was rendered to cover possible errors and omissions in the amounts found to be due from the companies.
In principle, every point made by respondent has been decided adversely to his contention in Aetna Ins. Co. v. O ’Malley,
The record shows that respondent rendered diligent and valuable services, and incurred expense; that his efforts contributed to the collection of a much larger sum for the benefit of the policyholders, or of the State, than might otherwise have been recovered. However, for the reasons stated, we are unable to permit him to retain compensation out of the fund collected. If, as contended by respondent, the State shall become the ultimate beneficiary of a part of this fund, the question of respondent’s reimbursement may be addressed to the General Assembly.
*908 Accordingly, the judgment is hereby reversed and the cause remanded with directions to the trial court to enter a judgment in favor of appellant and against respondent for the amount sued for, with simple interest at six per cent per annum from the date of the institution of the suit and for costs.