154 Ill. App. 195 | Ill. App. Ct. | 1910
Each replication attempts to answer all the pleas of the defendant. The first and sixth replications attempt to traverse the pleas. The second, third, fourth and fifth replications set up a section of the statute of Nebraska, providing what acts by a party shall constitute such party an agent of an insurance company in Nebraska, with an averment that summons was served on one W. B. Cross in Cass county, Nebraska, and with averments that said Cross had done and was doing certain things in Nebraska for said defendant, whereby, by virtue of said statute, he was the agent of the defendant.
If any of the replications was a legal answer to all the pleas, then this judgment must be affirmed. The first and sixth replications are intended to be traverses of the pleas. Both these replications aver “that W. B. Cross upon whom service of process of summons in said cause in said suit was had was at the time aforesaid, in said state of Nebraska, the agent of said defendant.” The demurrer is both general and special; the special ground of demurrer to the first replication is that the replication does not plead facts but conclusions; the special ground of demurrer to the sixth and seventh replications is that the order and judgment of the state of Nebraska court is not a final judgment. If it be conceded that the averments of the first plea are conclusions, still that reason is not urged against the sixth plea. A general demurrer will only reach matters of substance, while to reach matters of form the special reason must be assigned. Argumentativeness is only available as ground of special demurrer (6 Encyc. of Pl. and Pr. 307); hence this reason not being assigned as to the sixth plea the demurrer to that plea was properly overruled. The special ground of demurrer to the second, third, fourth and fifth is that the defendant is not bound by the statute of Nebraska. The courts of Illinois are committed to the doctrine of accepting the decisions of courts of a foreign state in construing and applying the statutes of such foreign states. Fireman’s Ins. Co. v. Thompson, 155 Ill. 204; Britton v. Chamberlain, 234 Ill. 246. The statute of Nebraska pleaded in these replications, declared who shall be deemed an agent for an insurance company. The Supreme Court of that state has construed and applied section 1942, paragraph 8, of the statute of Nebraska where it provides: “ (Agents) Any person or firm in this state who shall -receive or receipt for any money on account of or for any contract of insurance made by him or them or for any such insurance company or individual aforesaid or who shall receive or receipt for money from other persons to be transmitted to any such company or individual aforesaid, for a policy or policies of insurance or any renewal thereof, although such policy or policies of insurance may not be signed by him or them as agent or agents of such company, or who shall in anywise directly or indirectly make or cause to be made any contract or contracts of insurance for or on account of such company aforesaid shall be deemed to all intents and purposes an agent of such company, and shall be subject and liable to all provisions of this chapter;” and holds that it includes the purpose of service of a summons in an action on a policy to recover the amount of loss, and that a bank by the performance of any of the acts enumerated in such section, becomes the agent of the insurance company, and the proper service of summons on it as agent will be service on the company. Bankers Life Ins. Co. v. Robbins, 55 Neb. 117. The demurrer was properly overruled to these replications.
There is also a second additional replication which avers that the defendant is estopped from claiming that its appearance in the Nebraska court was a special appearance, for the reason that in its motion to quash the writ in that court, it prayed for costs and that its appearance though claimed to be special became a general appearance. The defendant invoked the law of the state of Nebraska by its voluntary act and it cannot avoid the effect of that deliberate act. The motion to quash the writ for want of jurisdiction was consistent with the averments of the motion but the courts of Nebraska hold, that by the prayer “to be discharged with its costs,” the defendant invoked the power of the court on a question other than that relative to jurisdiction. In Nebraska the rule is that a defendant may appear specially to quash the service, but if he goes further and pleads for a dismissal of the case it will be held to be a general appearance in the action, as it invokes the power of the court other than that relating to jurisdiction. McKillep v. Harvey, 80 Neb. 264; Cropsey v. Wiggenhorn, 3 Neb. 108; Bucklin v. Strickler, 32 Neb. 602. This replication, however, does not plead the law of Nebraska, and we do not consider it necessary to pass on the effect of such a plea in this state. The demurrer was properly overruled to the second, third, fourth, fifth and sixth replications. There being replications that fully replied to all the pleas, the judgment is affirmed.
Affirmed.