38 Ind. 424 | Ind. | 1871
This was an action by the appellant against the appellee upon a premium note executed by the defendant to the insurance company.
Demurrer to the complaint sustained, and final judgment for the defendant.
We have no brief for the appellee, and are not advised upon what ground the demurrer was sustained. But in looking through the complaint, it seems to us to have been defective in the following particular, if not otherwise: The plaintiff was appointed receiver of the company by the Marion Circuit Court, which court found that “the liabilities of the company for losses sustained by fire, and for money borrowed by the company to pay losses sustained by fire and used for that purpose, amounted to nine thousand seven hundred and fifty-seven dollars and ninety cents, and ordered an assessment of one hundred per cent, on the premium notes.” It does not appear, however, that any of the losses for which such assessment was ordered occurred while the defendant was a member of the company. It does not ap-. pear, therefore, that any loss occurred which justified an assessment upon the defendant’s note. The complaint in such cases should show such losses as justify an assessment upon the note sued upon. Manlove v. Burger; ante, p. 211, and cases there cited.
The judgment below is affirmed, with costs.
Pettit, J., dissents.