172 Mo. App. 255 | Mo. Ct. App. | 1913
The respondent is a foreign insurance company authorized to do business in this State, and has duly authorized the Superintendent of Insurance to accept service for it in any suit against it in this commonwealth. It had no local agent in Clinton county or elsewhere upon whom service could be obtained.
Appellant brought suit on one of its policies before a justice of the peace in Clinton county and service was had upon the Superintendent of Insurance at Jefferson City in Cole county. On June 8th judgment was rendered by the justice against the respondent, and on June 24, sixteen days later, the respondent filed its affidavit and bond for appeal to the circuit court which was allowed and proper notice thereof given to appellant.
In the circuit court the appellant filed a motion to dismiss the appeal because it had not been taken within the ten days allowed a resident defendant in which to appeal. The respondent contended that as the appeal had been taken within the twenty days allowed non-residents, the motion should be overruled. The trial court took this view and overruled plaintiff’s motion to dismiss. Whereupon, plaintiff refusing to
Section 7568 R. S. Mo. 1909, provides that if the appealing party he a non-resident of the county where the suit shall he instituted, the party shall in all cases of appeal allowed by this article, have twenty days to make such appeal.”
By section 7042 R. S. Mo. 1909 it is provided that “ . . . in case such process is issued by a justice of the peace or other inferior court, the same may be directed to and served by any officer authorized to serve process in the city or county where said superintendent shall have his office at least fifteen days before the return day thereof, and such service shall confer jurisdiction.”
It is contended by appellant that this section makes every foreign insurance company in the State a resident of every county in the State. And that since by this statute it is a resident of each county, it must perfect its appeal within the ten days -allowed other residents. But it will be noticed that it does not say a foreign company shall be deemed a resident of the county,' but only that service on the superintendent shall confer jurisdiction. The company is not regarded as a resident since only ten days service is required on other residents while fifteen days is required on the company. Said section 7042 relates not to residence but solely to service of summons and jurisdiction. This jurisdiction comes by reason of the foreign company having voluntarily submitted to it by filing the power of attorney with the superintendent. This power of attorney does not authorize the superintendent to do anything to bind the company beyond the mere receipt of service. And the liability of the company or the restrictions and limitations on the company by reason of such statute and power of attorney cannot be. stretched or extended beyond the terms of the statute.
We have been unable to find any case holding that a company, having no agent in the county, is deemed a resident of such county to the extent of being required to appeal in ten days, although, by force of Sec. 7042, jurisdiction to sue in such county is given upon service of summons on the Superintendent of Insurance. Nor have counsel cited to us any. The nearest case to it is that of Young v. Niles-Scott Co., 122 Mo. App. 392. But in that case the defendant, although a non-resident, had an agent in the county engaged in