84 N.W. 369 | N.D. | 1900
Lead Opinion
The plaintiff is the receiver of the Red River Valley Mutual Hail Insurance Company of North Dakota, a domestic insurance company organized in April, 1898, under chapter 14 of the Civil Code, with principal place of business at Wahpeton. Plaintiff was appointed receiver by the District Court of Richland county on December 29, 1899, in an action instituted in that court by the commissioner of insurance of this state, and immediately thereafter took possession of the assets of said corporation. A large portion of the assets consists of assessments levied upon the members of the corporation by the directors, some 1,800 in all, and which plaintiff claims are unpaid. But one assessment was made. That was levied on September 11, 1899, and was 5 per cent, of the face amount insured by each policy. This defendant had a five-year policy for $300, and this action is to collect $15 assessed against him on such policy. The case was tried in the District Court without a jury. The court found for the plaintiff, and judgment was entered in accordance therewith. Defendant appeals from the judgment, and in a settled statement of the case embodying all of the evidence offered demands a trial anew of the entire case in this court. The evidence in the record is of considerable volume, and in some particulars is conflicting, but as to all facts which are decisive there is no conflict. The following facts are all that are material to a determination of the issues: On February 10, 1898, seven persons, residents of the city of Wahpeton, executed articles of incorporation for the purpose of organizing the aforesaid corporation under chapter T4 of the Civil Code of this state. On February 23, 1898, said articles were approved as to form by the attorney general, and filed in the office of the commissioner of insurance, and on the same day, to-wit: April 23, 1898, the commissioner of insurance issued his certificate, reciting that said company had fully complied with all of the requirements of the
First, he contends that the policy upon which plaintiff predicates his right to recover is void. This contention is based upon the fact that Meeker, who took defendant’s application, did not have a certificate of authority as required by section 3T24, Id.; and upon the further fact that no certificate of authorization had at that time been issued by the commissioner of insurance, authorizing such corporation to do an insurance business. Briefly stated, his contention is that in procuring the defendant’s application, without such precedent authority, the corporation, through its agent, was doing or attempting to do an insurance business contrary to the prohibitions of the laws of this state relative to doing insurance business, and he concludes therefrom that not only is the application void, but that the policy thereafter issued on such application is also void, and accordingly furnishes no basis for any legal liability. We have occasion to notice this position only to the extent of pointing out the reasons why, in our view, counsel is in error in claiming that the taking of the application by Meeker, without a certificate of authority, was in violation of the statute. The corporation in question is a domestic mutual insurance company. Article 4 of chapter 14 of the Civil Code, under which it was organized, relates exclusively to this class of corporations. The first section contained in article 4, .§ 3104, Rev. Codes, provides that: “No policy shall be issued by a purely mutual insurance company until not less than two hundred thousand dollars of insurance in not less than one hundred separate risks have been subscribed for and entered on its books.” Section 3090, Id., provides that the commissioner of insurance shall, after the attorney general has approved the form of the articles of incorporation, “make an examination to ascertain whether the company has in all respects complied with the requirements of law, according to the nature of the business proposed to be transacted by it, and if satisfied by such examination that the corporation has complied with the law he shall deliver to such corporation a certified copy of the articles of incorporation and a certificate to the effect that such corporation has complied with all the requirements of the law, which on being filed in the office of the register of deeds of the county where the principal office of the corporation is located, shall be its authority to commence business and issue policies; and such certified copy of such articles of incorporation and of such certificate may be used for or against such company with the same effect as the original, and shall be conclusive evidence of the fact of the organization of such corporation.” Elsewhere in article 4 it is
But defendant claims that, in any event, he is not liable for the assessment sued on, for the reason that his entire legal liability to such corporation was discharged bv the payment of the $15 note before-referred to, which sum so paid represented the highest and only sum he could, under his policy, be assessed for in any one year. Before considering this claim, it will be necessary to refer to sec
Rehearing
ON PETITION FOR REHEARING.
A rehearing and reargument is requested in this case by respondent upon the ground that our decision was made upon “a misapprehension of the facts adduced in evidence and considered by the trial rourt.” The petition is accompanied by a written stipulation signed by counsel for both parties to the effect that an assessment was in fact made for the year i8q8, and that evidence of that fact was introduced at the trial in the District Court. The stipulation recites that the omission to include the same in the statement of case transmitted to this court was due to an oversight on the part of counsel for the appellant and respondent. Both parties request this court to consider the record as “amended and added to” so as to show the fact of the assessment, and also certain other facts, and ask us “to decide the said cause upon the merits as included in the entire record as so made ” Briefly stated, we are requested to do two things: First, to permit the introduction of evidence in this court originally,
which is not certified here by the trial court; secondly, to retry the case upon the record as so added to. Neither request can be granted. The records upon which this court acts in the exercise of its appellate jurisdiction are made by the District Court, and it does not lie within the power of counsel or of this court to alter such records. The language of the Supreme Court of Nebraska in Hoagland v. VanEtten, 43 N. W. Rep. 422, is directly applicable. The court said: “The duty of settling bills of exception is imposed on the judge of the District Court before whom the cause was tried, and the Supreme Court must accept the bill certified to as correct. This court, in the exercise of its appellate jurisdiction, can take no action looking towards a coirection of bills of exception wherein mistakes of the kind referred to in this motion and affidavit are alleged to have occurred. That duty devolves upon the judge of the District Court.” In Thuet v. Strong, 7 N. D. 566, 75 N. W. Rep. 922, this court held “that the action of the court with respect to a review of a case cannot be controlled by counsel who, in a given case, see fit to ignore the statute and rules of court governing the settlement of statements of the case and the preparation of abstracts.” Upon a proper showing and a timely application this court will transmit records to the District Court for correction. As was said in Baumer v. French, 8 N. D. 319, 79 N. W. Rep. 340, “Under certain circumstances the practice of sending down a record for amendment is entirely proper.” See Moore v. Booker, 4 N. D. 543, 62 N. W. Rep. 607, and court rule 33 (74 N. W. Rep. xii). But the right to have the record sent back is not an absolute one. In Coulter v. Railway Co., 5 N. D. 568, 67 N. W. Rep. 1046, the court, speaking through Corliss, J., said that: “After a case has been submitted to this court on the merits, and the work of investigation has commenced, parties will not be allowed the privilege of amending the record, except on condition of making a very satisfactory showing; and that showing must be made in this court, and this court will in all such cases determine whether, under the circumstances, the record should go back for correction.” In this case we do not have occasion to decide whether, in any case, such correction can be made after decision filed. No request is made to remand the record to the District Court, where this power to correct alone exists. Respondent is content with asking an amendment at the hands of this court. This, of course, cannot be granted, and the petition for a rehearing must therefore be denied.
The real purpose of the request for a reargument and amendment of the record is to secure a decision on such questions as shall be decisive of the liability of some 1,300 other policy-holders in the defunct insurance compare Such a result, we can readily see, would be highly advantageous to respondent in his further duties, as receiver. The questions involved, however, are of such importance that we cannot, with proprietv, enter on a discussion thereof until they arise in an orderly and regular way.