229 Mo. 187 | Mo. | 1910
— Relator seeks a writ of prohibition to go against the judge of the circuit court of Henry county to prohibit him entertaining jurisdiction of a suit pending in that court wherein Herman P. Paris is plaintiff and this relator is defendant. The suit was begun by the filing of a petition in the name of the plaintiff for himself and all others similarly situated who might see fit to come in and share in the
The Minnesota Mutual Life Insurance Company is a corporation organized under the laws of Minnesota and domiciled at St. Paul in that State, engaged in the business of life insurance, extending into other states, Missouri among the others. The company was originally chartered to do the business of life insurance on the assessment plan, that is to say, on the death of one of its members an assessment was made on the surviving members and out of the proceeds of such assessment the insurance on the life of the deceased member was paid. On becoming a member every one paid into the treasury a sum equal in dollars to the number of years of his age, which went into what was called the guarantee fund to secure the payment of the assessments and to be used in ease of necessity in payment of death benefits. While the company was doing business on that plan the plaintiff became a member and took out three policies on his life for $2000 each, paid the fees and amount therefor at the time, and has ever since paid in due course all the assessments levied by the company. And so the company went on in its business for several years and accumulated in the guarantee fund $600,000. But afterwards in 1901 the company, whose original name wqs The
It is also charged that the company has failed to apply the guarantee fund to the payment of assessments occurring on the death of members holding assessment policies, and has fraudulently misappropriated and is continuing to misappropriate a large part of it and unless restrained will dissipate the whole fund. That by this unlawful conduct plaintiff has been compelled to pay increased and burdensome assessments. The prayer of the petition is that the defendant com- \ pany be required to disclose the amount of the guarantee fund at the date it ceased to do business on the assessment plan; the amount on hand now; the dispo- j sition it has made of that fund; how it is invested;/ how many members now living hold policies on thei assessment plan; their postoffice addresses; the aggre-l gate of the outstanding assessment plan policies; whatj amount of money has been received upon assessments;' collected from members since the change of name;! what part of such money has been paid on policies, on the old-line plan; to state an account with plaintiff! since he has been a member, showing how much money] collected from plaintiff has been appropriated to pay-: ment of death losses on old-line policies; that defend-! .ant be enjoined from appropriating any of the guarantee fund to payment of policies on the old-line plan, j &aA from making assessments to pay claims other than death losses on the assessment-plan policies; that a receiver be appointed to take charge of the guarantee fund and collect and receive all assessments hereafter made against assessment-plan members and see that, they are applied only to the payment of death losses on assessment policies; that defendants be adjudged
The respondent’s return to the rule to show cause why a writ of prohibition should not issue admits the allegations of the petition of relator, but avers that the sole object of the petition in the case of Faris against the insurance company, as respondent construes it, is not to have the circuit court exercise a complete visitorial power over the business and affairs of the relator but on the contrary one of the purposes of the petition is to obtain a money judgment against relator on account of moneys received by it which it ought not to have received and ought not to retain, and that if respondent erred in overruling the demurrer or should hereafter err in any respect in the progress of that cause the relator has a complete remedy by appeal.
From this return it may be inferred that the learned judge in overruling the demurrer did not construe the petition as one aimed to bring about a visitation of the affairs of the relator, but only to obtain a money judgment for a balance found to be due plaintiff after such an accounting as a court of equity could cause to be made.
It is within the scope of equity jurisdiction to cause an accounting to be made under some circumstances and to render judgment for the balance ascertained. But the money judgment is to follow the accounting,] and if the conditions surrounding the case are such as j to put the accounting beyond the reach of the court: it has no jurisdiction to render a money judgment.,; Ordinarily an error committed in the rendering of a ■ money judgment may be corrected' on appeal, but if the accounting that must be had before the balance can be ascertained is of a character which the court has no power to make, and would involve- destruction of
In the brief for relator we are referred to a decision of the Supreme Court of the United States holding that the transaction whereby this insurance company changed the character of its business from the assessment to the old-line plan was in conformity do a statute of Minnesota and was valid. [Wright v. Insurance Co., 193 U. S. 657.] But that question, there is such a question, is not in this case; we are now concerned only with the question of jurisdiction of our circuit courts over a cause like this.
In Condon v. Mutual Reserve Association, 89 Md. 99, the Supreme Court of Maryland considered a case very like this and held that the trial court had no '■jurisdiction. The Maryland court pointed out the dual capacity of a policy-holder in such a mutual company; he was an insured and, to a certain, extent, an insurer, a creditor and a member. The court said: “The mere fact that he is a member of the corporation does not preclude him from asserting against the corporation any right arising out of his contract; but the character of the remedy invoked may measure the limits of the jurisdiction of the tribunal appealed to, when the domicile of the corporation is considered. It is therefore entirely possible that a state of facts which would authorize a court, in the exercise of its visitorial power, to inquire into the validity of acts affecting the rights of a policy-holder, when done by a corporation located within the jurisdiction of the court, would, as respects a foreign corporation^ be wholly insufficient to confer upon the same court jurisdiction to act at all.” The complaint of the policy-holder in that case was very much like the complaint in the case at bar: it was charged that the assessments were illegal, excessive and fraudulent, and the prayer was • for an
That insurance company was assailed with a like suit in Virginia and also in North Carolina, and in both of those States it was held that the court had not jurisdiction. [Taylor v. Mutual Association, 97 Va. 60; Howard v. Mutual Association, 125 N. C. 49.]
A court of equity never does a vain act, it nevery decrees what it cannot compel to be performed. If this were a domestic corporation the court could decree such an accounting as prayed, appoint its commissioner to go to the office, of the corporation and overlook and examine all its books, appoint a receiver, if it-deemed proper, to take possession of all its assets and administer the same under the direction of the court pendente lite, and if the corporation or its officers should refuse to surrender its books or assets, there would be sufficient executive power forthcoming at the call of the court to enforce its decrees. But the commissioner or the receiver in such case is but the representative of the court; he is, while he keeps within
There are, according to the petition, a large num-' her of holders of policies like those held by plaintiff, scattered perhaps over many States, each of whom has as much right to bring a like suit in his State las the plaintiff has to bring this suit. Each of those-many policy-holders would have an interest in each of the many suits, because in a mutual concern the interest of one cannot be determined without determining the interest .of - all, or at least the basis on which the interest of all-must be calculated. It would be a strange system of law that would involve a concern in/ such confusion. If such were the law no insurance company would venture to do business outside its own State.
It would be impossible for the circuit court to render an intelligent judgment for the money which the plaintiff says he has been unlawfully compelled to pay in excess of legitimate assessments, without entering into the elaborate accounting above indicated, and since the court has no jurisdiction to make such an accounting it has no jurisdiction to render such a money judgment. Nor can the jurisdiction be sustained on the ground that the petition is in the nature of a bill for discovery, because the discovery asked is only in aid of the accounting; is in fact but a part of the accounting. “A bill for relief and discovery cannot be sustained solely for the
A receiver appointed by a court of competent jurisdiction in another State is recognized under certain conditions in this State. The law on this point is well stated in two cases cited in respondent’s brief, Weil v. Bank, 76 Mo. App. 34, opinion by Judge Ellison, jand Seymour v. Newman, 77 Mo. App. 578, opinion by Judge Bond. In each of those cases the corporation for which the receiver was appointed was domiciled in the jurisdiction of the court which made the appointment, presumably the bulk of the assets of the bank was in each case within that jurisdiction and a small asset was found here. A reading of those cases shows that the recognition of the foreign receiver is only a matter of comity and is not extended when the rights of a citizen would be injuriously affected. If a court in a foreign State should undertake to appoint a receiver for a Missouri corporation the bulk of whose assets were in this State, his authority would not be recognized here. In this case the plaintiff claims to hold three policies of $2000 each, not mature, nothing now due on them, yet he asks that to protect his interests a receiver be appointed to go to Minnesota and take possession of the $600,000 guarantee fund, to preserve it for the security of his claims and the like claims of all others who will join him in this suit. No such receiver would be or ought to be recognized at the home of the corporation.
The circuit court has no jurisdiction of the cause of action stated in the petition of Herman P. Faris v. The Minnesota Mutual Life Insurance Company, and no amendment of the petition could give the court jurisdiction of that cause; an amendment stating a cause of action within such jurisdiction would be an amend
The writ of prohibition is awarded as prayed.