This suit wаs brought by the appellants to recover on a fire insurance policy issued by the California Insurance Company to Olsen & Sons on April 7, 1891, and assignеd by them with the consent of the company to'the appellants, on a stock of furniture, carpets, etc., which stock was hy the policy insured оne year from its •date for one thousand dollars.
The grounds upon which the appellants sought to hold the Firemen’s Fund.Insurance Company liable were that the other insurance company had gone out of business, and it had assumed the payment of its losses.
The California Insurance Company being a foreign corporation, citation was served upon Eichlitz & Tobin, on July 27, 1892, who were -alleged to be its local agents.
The Firemen’s Fund Insurance Company answered denying any liability.
When the case was called for trial, the plaintiffs announced ready, *372 and the Firemen’s Fund Insurance Co. likewise appeared and announced ready for trial. The California Insurance Co. having failed to appear or answer, the appellants askеd for a judgment by default with a writ of inquiry, and offered to make the necessary proof to establish its demand against said company. Thereupon the attorney for the Firemen’s Fund Insurance Company, specially disclaiming that he' represented the California Insurance Company, presented as a friend of the court the affidavit of Eichlitz & Tobin, by which they swore that, while they were formerly the agents of the California Insurance Company, they cеased to be such agents on the 12th day of May, 1892; that they were not its agents or local representatives on the 21st day of July, 1892, and have not been sinсe that date, etc. Whereupon the appellants moved the court to strike out such affidavit upon the ground that it was not made by a party to the record, but by a stranger thereto, and could not be considered by the court for any purpose, — which motion was overruled by the court, and thе ruling excepted to by the appellants.
The court then called Wm. Gr. Tobin, of the firm of Eichlitz & Tobin, who testified to the truth of the matters set out in said affidavit, — whiсh testimony was likewise objected to and a bill of exceptions reserved by appellants to its admission.
The court did not err in refusing to strike out the affidavit of Eichlitz & Tobin; nor in holding that there was no legal service on the California Insurance Company; nor, in refusing to permit appellants to takе judgment by default with a writ of inquiry against said company.
When a corporation is attempted to be served through an alleged officer or agent, and the official character or agency of the person served is called in question, the court may, for the purpose of protecting its jurisdiction, inquire, as a fact essential to confer jurisdiction over the person of the defendant, whether or not the alleged officer or agent through whom the defendant is sought to be brought before the court is in fact such officer or agent. When it is brought to the knowledge of the court by the affidavit of the person upon whom the citation has been served, that a judgment by default is being sought against a corporation by service upon him as its оfficer or agent, and that he is not such, it would seem that the court has the power to inquire into the fact, or at least should require of plaintiff prоof of the official character or agency of the person before proceeding to judgment. Jones v. City of Jefferson,
It is unnecessary for us to pass upon appellants’ fourth assignment of error, inasmuch as the evidеnce, the exclusion of which is complained of, was afterwards admitted by the court, as is shown by the statement of facts in the record.
In view of the аllegations in plaintiffs’ petition, we think there was no error in the court’s holding that the contract attached as an exhibit to the petition did not show an assumption by the Firemen’s Fund Insurance Company of the payment of the loss sued for. The petition alleged that the property insured was consumed by fire on the 25th day of February, 1892. The exhibit shows that on the 20th day of April, 1892, when the California Insurance Company went out of business, it transferred its “trade, contingent liabilities and good will” to the Firemen’s Fund Insurance Company, and that the transfer went into effect at noon on that day, stipulating that thereafter all business аssumed or written should be on account of the last-named company. The California Insurance Company, by the contract, promised to at оnce proceed to the discharge of its outstanding obligations, the Firemen’s Fund Insurance Company declaring that it had fallen upon it to pay thе losses and reap the advantages which were to accrue from its assumption of the losses of the other company. The loss to aрpellants was an actual and not a “contingent liability” of the California Insurance Company. It was its “outstanding” subsisting obligation which by the contract with its transfеree it promised to “proceed at once to discharge.” By the contract it had not “fallen upon” the Firemen’s Insurance Company to pay this loss. Its undertaking was to pay the losses “which were to accrue” from its assumption, and not such as had already accrued.
The only ground оf recovery alleged by plaintiffs against the Firemen’s Fund Insurance Company being upon the contract attached to their petition as an еxhibit, as it created no liability in plaintiffs’ favor against the company, it was useless for the court to proceed further with the testimony offered by plаintiffs to prove the destruction of their propertjq etc., and it did not, therefore, err in excluding such testimony, nor in instructing the jury to find a verdict for said company.
As the contract upon which it was sought to hold the Firemen’s Fund Insurance Company liable did not create such liability, it is unnecessary for us to pass upon the rulings .of the court in regard to the admission or exclusion of testimony offered by the appellants.
There'is no error in the judgment of the District Court, and it is affirmed.
Affirmed.