214 F. 1 | 9th Cir. | 1914
Lead Opinion
(after stating the facts as above).
“As between strangers it would be improbable that the grantee in a deed would permit it, after delivery, to remain in the possession of the grantor. It is not so, however, where the grantee is the wife of.the grantor, and he has a safe for the keeping of valuable papers.”
In Appeal of Madeira, 4 Atl. (Pa.) 908, the Supreme Court of Pennsylvania said that an assignment without valid consideration and a gift are equal, and added:
“The legal requisition is that the intention of the donor be established by clear and precise evidence, and that the delivery be secundum subjectam ma-teriam.”
And the court intimated that if there had been in that case an assignment of the policy to the wife of the insured, and it had been evidenced by nothing more than its deposit in a box or other receptacle common to the use of both husband and wife, there would be no doubt as to her right to the policy. While these decisions of courts of Pennsylvania are not controlling, we think they are in harmony with the doctrine that the essentials of a delivery of an assignment are those which accord with the nature of the transaction, the circumstances and the relations between the parties; that while the mere execution of an assignment and a delivery of a copy thereof to the insurance company without notice to the assignee, the assured continuing to hold the policy and pay the premiums thereon, would not in all cases be a sufficient assignment, it would be sufficient if the assignee sustained to the assured the relation of wife or minor child.
It has been held in other jurisdictions that the delivery may be constructive, and that an assignment of an insurance policy may be sustained where the intent of the assignor to assign is clearly shown, notwithstanding that the policy remains in his possession, and that filing the assignment or a copy thereof with the insurer, in accordance with its requirements to that effect, is a sufficient substitute for actual delivery to the assignee. In McDonough v. Ætna Life Ins. Co., 38 Misc. Rep. 625, 78 N. Y. Supp. 217, the court said:
“Tbe assignments came to the office of tbe company, presumably, for' tbe purpose of notifying tbe company that some one other than any of the parties to the contract of insurance claimed title to the policies. It was not an improper place to lodge the assignments. In the course of business, it was a very proper place, not only for safe-keeping, but to prevent the moneys upon*6 the policies, when they should grow due, from being paid to another. * * * If the assignor, the insured, sent them, then the presumption would he that he sent them for the benefit of the assignee. If that was the only delivery, it would be a good delivery, being for the benefit of the assignee.”
See, also, Hurlbut v. Hurlbut, 49 Hun, 189, 1 N. Y. Supp. 854. In Northwestern Mut. Life Ins. Co. v. Wright, 153 Wis. 252, 140 N. W. 1078, the court said:
“The instrument of transfer may be delivered to a third person, with intention not to recall it, and the transaction be complete, even as indicated, without the new owner having present knowledge thereof. The delivery to the third person and acceptance by him for the purposes of the transaction is a delivery to the new owner; where such transaction is beneficial to the new owner, the law supplies the rest; acceptance by such new owner is presumed until the contrary is shown.”
And in Burges v. New York Life Ins. Co., 53 S. W. 602, the Court of Civil Appeals of Texas held that actual delivery of an assignment of an insurance policy to the assignee, who was the assignor’s adopted child, was unnecessary to validate the assignment. In that case the assignment was delivered to the insurer. The court said:
“Even in the absence of evidence of an actual manual delivery, we are warranted in holding that the facts and circumstances surrounding the donor and donee would constitute a delivery, within the meaning of the law.”
The defendant cites decisions to the proposition that in order to invest an infant of tender years with title to property, there must be more than a mere execution of an instrument which the grantor retains in his custody, in the absence of satisfactory proof that it was his intention that such instrument should operate to convey the property immediately to the infant. But we find in the present case ample evidence of the intention of the assignor that the .assignment should operate immediately. Everything that was necessary to carry out that intention was done. The assignment was signed, sealed, acknowledged, and lodged with the insurance company in compliance with its rules. The assignor was the natural guardian of the assignee, who was his daughter, and a minor, and was in his care and control. In retaining the papers in his possession, he should be deemed to have held them for her as her parent and guardian.
“And it appearing that Effie J. Dunlevy is a resident of. the state of California, it is hereby ordered and decreed that service of said rule upon Effie J. Dunlevy be 'by serving her personally with a copy of this petition and order, or by sending a copy of same by mail, or registered mail, to her at her last known address. Rule returnable the 26th day of February, 1910.”
The only attestation of the order are the words appended thereto, “By the Court.” Mrs. Dunlevy made no appearance in the proceeding, and on May 3d an order of the court was made, framing the issue, which was whether Joseph W. Gould made a valid gift of the policy to Effie J. Dunlevy. While the insurance company expressed its willingness to pay the money- into court, it was not actually paid into court until March 19, 1910. On September 19, 1910, a jury returned a verdict in the cause entitled Boggs & Buhl, A. J. Gould, and Eincoln National Bank, Interveners, v. Joseph W. Gould, as follows: “We, the jurors, impaneled in the above entitled case, find a verdict for defendant.” No judgment was ever entered upon the verdict of the jury, but upon October 1, 1910, the court ordered that the money be paid to Joseph W. Gould. Counsel for plaintiff contend that the service of the rule to show cause and the other papers was ineffectual to require the
“such order limit a time, depending on the place where such process is to be served, after the service thereof, within which compliance with the requirements thereof must be made by such defendant or defendants; such process to be returnable at such time after the service thereof, as such court shall, by special order, direct.”
The proceedings in the case under consideration fail in several respects to comply with these provisions of the statute. But the most vital defect is that the order wholly fails to limit a time, after the service thereof, within which compliance with the requirements thereof must be made, or to direct by “special order” that the process be returnable at a stated time after the service thereof. The order which was served upon Mrs. Dunlevy was returnable in the court of a distant state within eight days after the service upon her, while, if she had been a resident of that state and served therein, she could not, under the state law, have been required to appear and plead until 10 days after the date of the service. 1 Purd. Dig. [13th Ed.] p. 244. No default was taken against her, and nowhere in the proceedings of that court is there a recital or finding that service had been made upon her. The records show that from and after the return of the service upon her of the order to show cause, she was ignored in the proceedings. Substituted service upon a nonresident defendant being of statutory origin, the law must be strictly complied with (Jennings v. Johnson, 148 Fed. 337, 78 C. C. A. 329), and where the service is so defective as not to confer jurisdiction on the court, the judgment is open to collateral attack. Johnson v. Hunter, 147 Fed. 133, 77 C. C. A. 359; Guaranty Trust Co. v. Green Cove Railroad, 139 U. S. 137, 11 Sup. Ct. 512, 35 L. Ed. 116; Noble v. Union River Logging Railroad, 147
“The cases are numerous which decide that where a particular method of serving process is pointed out by statute, that method must be followed.”
And on page 317 of 130 U. S., on page 536 of 9 Sup. Ct. (32 L. Ed. 946) the court quoted with approval the following language qf the Supreme Court of Wisconsin:
“When the statute prescribes a particular mode of service, that mode must be followed. ‘Ita lex scripta est.’ There is no chance to speculate whether some other mode will not answer as well.. This has been too often held by this court to require further citations.”
Applicable to the contention of the defendant that, having paid the money into the Pennsylvania court, it discharged the debt, and was no longer concerned with the disposition of the money, is the following from Drake on Attachment, § 695:
It follows, hence, that a garnishee must, for his own protection, inquire: First', whether the court has jurisdiction of the defendant; and, next, whether it has jurisdiction of himself. If the jurisdiction exists as to both, he has no concern as to the eventual prqtection which the judgment of the court will afford him; it will be complete.”
In the proceedings upon the writ of garnishment, the garnishee had ample opportunity before it paid the money into court to discover that the defendant in the writ had not been duly served with process, and that the court had no jurisdiction over her.
It is suggested that the lien created by the writ of garnishment upon the fund owing by the insurance company on the policy still subsisted at the time when the judgment was rendered in the court below against the defendant herein, and that at least the amount of the debt owing to Boggs and Buhl, the judgment creditors, should have been deducted from, the amount for which the judgment was rendered against the insurance company in the court below. To this it is to be said that the judgment in the garnishment proceedings, in which proceedings the court had jurisdiction of the judgment creditor, the garnishee, and the claimant, but not of the judgment debtor, finally disposed of the rights of Boggs and Buhl under that garnishment, and determined that their writ created no lien on the money which was m the hands of the insurance company, and that the money belonged to the claimant. With that judgment and the payment of the money to the claimant the jurisdiction of that court over the subject-matter of the present action came to an end.
We hold that the proceedings in the Pennsylvania court present no defense to the plaintiff’s cause of action.
The judgment of the court below is affirmed.
Dissenting Opinion
(dissenting).
I concur in the view that we cannot consider certain testimony contained in the record; and in the further view that the Pennsylvania court never acquired jurisdiction to try the “feigned issue.” But there being no averment of the actual or constructive delivery of the. instrument of assignment to
But if the sufficiency of the complaint be assumed, I still think the judgment should be modified by deducting therefrom the amount of the Boggs & Buhl judgment, including interest and costs. It is conceded that this latter judgment was regularly entered in a suit, in which the Pennsylvania court had plenary jurisdiction, and that thereupon execution-garnishment process -was duly issued and properly served upon the plaintiff in error. In so far as concerns the amount of the garnishment claim, it was a cáse, therefore, falling squarely within the rule quoted in the opinion, with apparent approval, from Drake on Attachment. The court had jurisdiction of the defendant (the defendant in error here) and of the garnishee (the plaintiff in error here). Jurisdiction existing as to both, the garnishee could rest assured that by payment into court of the amount of the writ its protection would be complete. The fact that it paid in more than was required to satisfy th£ writ, and sought protection as to the excess through a “feigned-issue” proceeding, which was ineffective because jurisdiction as to such issue was not acquired over the person of the defendant in error, cannot operate to deprive it of the protection to which it was entitled upon yielding to the valid writ of garnishment. And as to the “feigned-issue” order or judgment, I am unable to see how it can be held void for want of jurisdiction in favor of one party and valid as against the other; if void as to one, it is void as to both. It is suggested that in that proceeding the court had jurisdiction of the judgment creditor and of the claimant, but in considering an issue between the plaintiff in error and the defendant in error, how can the presence of other parties operate to confer jurisdiction ? I am unwilling to hold, in effect, that the plaintiff in error was, at the time of the proceedings in Pennsylvania, not indebted to the de- . fendant in error, and thus enable her to escape her creditors there, and at the same time hold that it was and still is indebted to her, thus requiring it to pay the claim a second time.