150 Mo. App. 574 | Mo. Ct. App. | 1910
The court sustained a third de<murrer to an amended petition, gave judgment for defendant, and plaintiff prosecutes an appeal therefrom.
It is averred in the petition that plaintiff is the-trustee for the creditors and. policy holders of the Union Mutual Fire Insurance Company of Cincinnati,
The suit proceeds against defendant for a contingent liability said to be affixed against it under the the statutes of Ohio to the extent of not less than three and not more than five times the amount of the premiums which defendant agreed to pay on the policies of insurance which it held in the insurance company referred to. The petition avers substantially that the Union Mutual Fire Insurance Company of Cincinnati was organized as a mutual insurance company under the laws of Ohio for the purpose of conducting the business of fire insurance with its members; that thereafter a certain proceeding was instituted against it in the name of the State of Ohio ex rel. its Attorney General in the Supreme Court of that state for the purpose of dissolving the corporation and winding up its affairs. In this proceeding the Supreme Court of Ohio rendered a decree dissolving the corporation and appointed plaintiff Swing as a trustee for the creditors and policy holders of the insurance company, to the end of collecting its assets and liquidating its obligations. There are pleaded in the petition certain statutes of the State of Ohio which enjoin a contingent liability against the policy holders and members of such mutual insurance companies, whereby such members and policy holders may be required, in proper circumstances, to pay not less than three times and not more than five times the premiums stipulated for in their policies to the end of liquidating the legitimate obligations contracted by the company. The insurance company mentioned having been dissolved, this suit of the trustee proceeds against the defendant policy holder on such contingent liability, which, it is averred,
We decline to re-examine the question as to whether or not the statutes of Ohio conferring jurisdiction on the Supreme-Court of that state to dissolve the corporation and appoint plaintiff trustee should be pleaded, for such was the ruling on the former appeal and the opinion of the court then expressed is the law of the case. [Hayward, Assignee, v. Smith et al., 187 Mo. 464, 86 S. W. 183.] It is entirely clear from the petition that the Supreme Court of Ohio did not proceed according to the course of the common law in the matter referred to, for the petition avers it proceeded under the constitution and statutes of that state, but fails to set forth the constitutional or statutory provisions or thejr tenor and effect, which is essential for the court to determine what jurisdiction or power they purport to confer. Plaintiff deduces his right to sue from the proceedings had in the Supreme Court of Ohio, which, it is said, resulted in the dissolution of the corporation and his appointment as trustee. There can be no doubt that, aside from such proceedings, he is wholly without authority in the premises. It is elementary that where a foreign statute or the statute of another state is relied upon as conferring or constituting a cause of action or conferring the right to sue, it must be substantially stated with such distinctness that the court may understand and determine its effect. The general laws of the state of the forum where the suit is instituted are not required to be pleaded in such circumstances for the reason that the courts are judicially advised of their existence and effect, but such is not true with respect to foreign statutes and constitutions of which we are without knowledge until they are pleaded and proved. It is therefore essential, when asserting a right in the courts of this state said to have
The averments of the amended petition touching the jurisdiction of the Supreme Court of Ohio which were declared insufficient on demurrer are as follows:
‘ ‘ That under and by virtue of the laws of the State of Ohio pertaining to corporations and particularly under the^ provisions of title 4, chapter 3, of the Revised Statutes of the State of Ohio, sections 6761, 6768, 6780, 6781, and 6782 thereof and under and by virtue of the provisions of the Constitution of the State of Ohio, and particularly under the provisions of section 2 of article 4 thereof, the said Supreme Court of Ohio, had full jurisdiction in a proceeding in quo warranto at the relation of the Attorney-General, to oust and exclude a corporation from the exercise of its corporate rights, privileges and franchise and to enter an order dissolving such corporation and to appoint a trustee for the creditors and policy holders of such corporation, and plaintiff avers that the above mentioned suit was such a proceeding and was authorized under and by virtue of the Constitution, statutes and laws of the State of Ohio; that said court had full and complete jurisdiction of the subject-matter of said suit and full and complete jurisdiction over the parties thereto, and plaintiff avers that said judgment and decree are still in full force and effect and are entitled to full faith and credit under the provisions of section 1, article 4, of the Constitution of the United States.”
It is to be noted that instead of pleading the constitutional and statutory provisions in full, or substantially stating the tenor and effect of the same, the
The cause must be remanded, however, for the reason a final judgment was given against the plaintiff as if the merits of the controversy were tried when it should have been the usual judgment on demurrer, together with one for treble costs. The court proceeded under our statute, section 623, Revised Statutes 1899, section 623 An. St. 1906, which provides substantially that if a third petition be adjudged insufficient on demurrer, the party filing such pleading shall pay treble costs and no further petition shall be filed, hut judgment shall be rendered. The section of the statute referred to is penal in character and the judgment given thereunder must not exceed its express pro
Because of the error in the judgment, the cause will be remanded with directions to the trial court to enter judgment sustaining the demurrer with 'treble costs, dismiss the petition and order execution. It is so ordered.