33 Iowa 210 | Iowa | 1871
The only question arising in this case is as to the liability of the garnishee, the Hartford Fire Insurance Co., upon the answers of their agent, set out in the statement preceding this opinion. That liability, if any, in this case, must be grounded upon an indebtedness by said insurance company to the defendant in the action, O. N. Smedley, at the time of the garnishment or subsequent thereto, and prior to the adjudication thereon. No claim is made of any liability of the appellant, on the ground that the garnishee had any of the defendant’s property in its hands. The question then is simply whether, in the language of our statute, “ it is made to appear that the garnishee was widébted to the defendant.” The service of the garnishment process does' not constitute a prohibition of all commercial or business transactions between the garnishee and the judgment or attachment
The single inquiry, then, is, was the garnishee, the Hartford Fire Insurance Co., indebted to the defendant C. N. Smedley. This inquiry can be answered by ascertaining whether Smedley could have compelled by action the insurance company to pay him the so-called unearned premium. If he could, then the insurance company was indebted to him and is liable to this plaintiff; if he could not, then the' company is not liable, although it may have voluntarily paid to him that sum or any other. The answer shows that the property described in the policy had
But the appellee’s counsel insists that the insurance company, having declared the policy void, was liable to the insured for the unearned premium. The case of Vicle v. The Germania Insurance Co., 26 Iowa, 9, is cited in support of this claim. In that case (see page 54) the underwriters reserved the right to cancel it upon the risk being increased, or for any other cause, “ hy paying to the assured the unexpired premium pro rata? The case does not support the doctrine as claimed by counsel for appellee; and, further upon this point, it should be noticed
Reversed.