Nichol v. Newman

160 Mich. 582 | Mich. | 1910

Moore, J.

This is another phase of the litigation which was before us in Nichol v. Murphy, 145 Mich. 424 (108 N. W. 704); Daniel v. Insurance Co., 149 Mich. 626 (113 N. W. 17); Nichol v. Ward, 156 Mich. 136 (120 N. W. 569). A reading of the opinions in those cases will aid in understanding the questions presented here. After the opinion was handed down in Nichol v. Murphy, supra, all the members liable under the assessment mentioned in the opinion in that case were notified, and payment was requested. This notice was received by defendant. After the company was notified to discontinue business, its board of directors passed a resolution ordering an assessment. Later it rescinded this action, and it does not appear that the directors ever levied the assessment in fact. On the 11th of December, 1899, following the action before mentioned, the company sent out to the defendant a notice that the assessment due upon policy 6271 amounted to #6.19, and between that time and the 27th of December, 1899, defendant returned his policy for cancellation. The company thereupon wrote defendant they could not cancel the policy until he had complied with the by-laws, and that there was due from him $3.09, which defendant sent to the company, together with his policy, and obtained a receipt therefor. Later this suit was brought and heard before the circuit judge, who made a very elaborate finding of facts. Among other things, he found that the defendant had not been a member of the company since the cancellation of his policy January 10, 1900, and therefore was not a member when the receiver was appointed; that he had paid all demanded of him at the time of the cancellation of his policy; that there never was sufficient assessed to pay the losses and expenses of the company while the defendant was a member; that the sum paid by him at the time of the cancellation of his policy was not sufficient to pay his share of the losses and expenses during the life of his policies; and that there was due the receiver the sum of $29.68, and judgment was rendered for that amount. From this judgment the defendant appeals.

The defendant claims (we quote from the brief):

“(1) That that part of Act No. 82, Laws 1873, as amended [see 2 Comp. Laws, § 7282], which authorizes a receiver to sue members of such company in the circuit court where he was appointed, and authorizing the service of process in that and any other county of the State, is oppressive, unwarranted, and utterly void.

“(2) That at the time this action was commenced there were no valid claims against such insurance company; the statute of limitations having long since run against same.

“(3) That the defendant was deprived of a trial by jury in Hillsdale county, his home.

“(4) That defendant paid his assessments and other charges in full, and was discharged and relieved of all claims of any kind to said company or its receiver.

“(5) That the letter of December 11, 1899, was a valid call upon defendant for any and all amounts due or to become due from him to said company.

“(6) That the notification of Receiver Badgley of May 4, 1901, was a valid call in full for any and all amounts due or to become due to the receiver or receivers of said company, and in full for all liability of said defendant as a member of said company.

“ (7) That the statute of limitations is an absolute bar to the collection of this assessment.”

Groups 1 and 3 may be considered together. The defendant made no request for a jury trial. See In re Cox, 129 Mich. 635 (89 N. W. 440). The provisions of the statute thus attacked have been in force since 1873, and, so far as we know, no doubt has been cast upon the right of the legislature to enact such provisions in civil cases. If counsel so diligent as the one presenting these objections is unable to find an authority in point in a civil case, it is fair to assume no such authority exists. The cases to which he calls attention are all criminal cases.

Groups 2, 4, 5, and 6 are decided against the contention of appellant in the cases cited early in this opinion in which the receiver in this case was a party.

7. Is the claim that the statute of limitations is an absolute bar to the collection of this assessment well taken ? It- is the claim of counsel that the statute of limitations runs from the date of the appointment of the receiver. Counsel cite, in support of this contention, Webber v. Hovey, 108 Mich. 49 (65 N. W. 619). A reference to the case will show that so far as it is applicable it is against the contention of appellant, as will appear by the reference to, and the quotation from, Scovill v. Thayer, 105 U. S. 155. A case directly in point is the case of Wardle v. Hudson, 96 Mich. 482 (55 N. W. 992), where it is held the statute of limitations does not commence to run until the date of the assessment.

Judgment is affirmed.

Montgomery, C. J., and Hooker, McAlvay, and Brooke, JJ., concurred.