45 W. Va. 283 | W. Va. | 1898
On the 23d day of July, 1897, Janies B. Swing, trustee of the creditors and stockholders of the Union Mutual Fire Insurance Company of Cincinnati, Ohio, in the Circuit Court of Wood County instituted an action of assumpsit against the Bentley & Gerwig Furniture Company on the following note: “In consideration of the policy No. 1)067, dated the first day of October, 1888, we promise to pay the Union Mutual Fire Insurance Company of Cincinnati, Ohio, the sum of four hundred and sixty-four dollars and sixty cents ($464.60), by such installments and at such times as the directors of said company shall assess and order, pursuant to the charter and by-laws thereof, and it is expressly agreed that this note is not transferable, and the liability is only for the losses and expenses incurred by the said company, and that no liability is incurred beyond the face amount thereof. (The secretary is authorized to insert the number and date in this note, and, in event of renewal or reissue, to change number and date to that of the new policy). Cincinnati, Ohio, August 10th, 1888. Bentley & Gerwig Furniture Company” — for the purpose of recovering a special assessment of one hundred and eighty-five dollars and eighty-four cents, balance on said note, made by him by virtue of the laws of Ohio, and under the supervision of the supreme court thereof, in certain proceedings therein pending for the final dissolution and winding up of the affairs of such Union Mutual Fire Insurance Company. The defendant demurred to the plaintiff’s declaration, the circuit court sustained the same, and, plaintiff not wishing to amend, the case was dismissed. Plaintiff obtained a writ of error.
The defendant insists that the demurrer was properly sustained for two reasons: (1) Because the plaintiff, being the legally appointed receiver or trustee of a foreign corporation, could not sue in the courts of this State, but was confined to the state of his appointment. (2) The declaration did not show a sufficient cause of action. As
2. The defendant further insists that the declaration fails to show a good cause of action in that it is for an assessment made by a foreign receiver of a foreign corporation, under the supervision of a foreign court without jurisdiction, and whose decree sued on is not properly set forth. The suit is an action of assumfsit, on a conditional note, and not on the decree of the court. The plaintiff alleges that the assessment was legally made by him under the laws of the state of Ohio “in order to pay the just losses and expenses of the said Union Mutual Fire Insurance Company and the expenses of winding up its affairs according to law;” that the same was reported to and approved by the court of his appointment, and he directed to collect the same. These are allegations showing the
Reversed.