12 F. 474 | U.S. Cir. Ct. | 1882
[orally.) In each of these cases the plaintiff is a citizen of Indiana, and the defendants are corporations in states other than Ohio, but each of which is licensed under the laws of Ohio to transact insurance business within this state, having agents appointed for that purpose, and actually transacting business in this state. The causes of action are upon .policies of fire insurance issued' by these companies, the subject of the insurance being property in the state of Indiana. The defe?adants have been sued here, and process has been served upon their agents. Motions were made heretofore to set aside that service, on the ground that this court did not have jurisdiction of the several causes of action, or over the persons of these defendants. The court, of course, has «jurisdiction of the subject-matter in case the parties are right. The controversies are between citizens of different states, so that, in that respect, the court .has jurisdiction, and the question then is reduced to one of jurisdiction over the persons. It is conceded that these actions might be maintained in the state courts of Ohio, notwithstanding the policies may not have been issued by the agencies in this state, and although the subject ofjthe insurance is not in this state.
Matthews, J. I assume it, then; because 1 think it is clear that these actions might be brought in the state courts, notwithstanding the fact that the policies of insurance may have been issued by the companies through agencies not in this state, and although the subject of the insurance is not in this state.
The action of assumpsit or covenant (as might have been brought in these cases) upon a policy of insurance is not local but transitory, and may be brought wherever the defendant is found; and, under the general provision of the Code of Procedure in this state, I assume it to be indisputable that an action might be maintained. It might be maintained in either of two forms; that is, in either of two modes of procedure. If there had been found property of the company, the process might have been by a foreign attachment, and if so, personal service need not have been had, and the judgment would have only gone to the extent of the property found, which might be subjected to the payment of it. Or if the corporation had a managing agent, (as described in the Code of Procedure of this state,) upon whom service could be made, it might have been brought in personally and made to answer to a personal judgment, and that judgment would have been conclusive between these parties in any other forum.
How, of course, an action cannot be commenced in this court against a defendant by attachment. It must be by a personal service, because the act of congress provides that the action shall be brought in the district where the defendant, is an inhabitant, or in which he may be found, and the question is whether, under the circumstances of this case, these defendants have been found in this district.
The statutes of Ohio have provided, as I have already indicated, the mode by which foreign corporations transacting business in this state, and represented by agents in this state, may be summoned to answer any cause of action transitory in its nature.
The insurance law itself requires that they should expressly assent to its terms and consent to be sued through certain agencies before they are allowed to transact business in this state.
The defence is that that consent only goes to the extent of the terms of that statute, and is reasonably construed to cover only the transactions arising under it. But, even if that were so, I should still think that under the other general provisions of the statute making provision for service of process upon managing agents of foreign corporations, their coming into the state by means of such agents for the purpose of transacting business was necessarily an assent to
The only distinction, then, between the two cases is that here the causes of action were not created by the action of the agents of the corporations in this state. But, by virtue of the general provisions of the statute relating to service on foreign corporations, even on the supposition that I am not authorized to construe the insurance law itself as requiring them to assent to be sued with reference to all causes of action, — and I do not think it can be limited, — I have thought this service was rightly had. The motions are granted vacating the former orders setting aside the service in these cases, and the cases are reinstated.