Harrington v. National Life & Accident Co.

ALLEN, J. This action was begun before a justice of the peace upon a policy of insurance alleged to have been issued by the defendant. Defendant is a foreign insurance company doing business in this State; and service of summons was had upon the insurance commissioner pursuant to Section 70421, Revised Statutes 1909. Defendant defaulted, and on June 26,1916, judgment was rendered against it by the justice of the peace in the sum of $254.50. Fifteen days after the rendition of said judgment, the defendant filed its affidavit for appeal and appeal bond, and was allowed an appeal to the circuit court. After the cause reached the circuit court plaintiff filed a motion to dismiss the appeal upon' the ground that *176 it had not been timely taken. The court sustained this motion and dismissed the appeal; and the defendant appealed to this court. The only question involved in the appeal is whether or not the defendant was required to appeal from the judgment of the justice of the peace within ten days after the rendition thereof, pr had twenty days to take such appeal. The statute involved, viz., Section 7568, Revised Statutes 1909, provides as follows: “•The appeal must be made within ten days after the judgment was rendered, but if a nonresident of the county where the suit shall be instituted, the party shall, in all cases of appeal allowed by this article, have twenty days to make such appeal.” The defendant, appellant here, contends that it is a nonresident of the county, within the meaning of said section, and that therefore its appeal, taken less than twenty days after the rendition of the judgment, was timely. Touching this matter we may say that it is now settled that a foreign insurance company, though regarded as a resident of every county within the state “within the contemplation of the statute relating to the service of summons” (Section 7092, supra), or “for the purpose of venue in civil actions,” is not to be regarded as a resident of a county in this State wherein it has no office or other place of business, and no agent for the transaction of its business, within the meaning of Section 7568, supra. (See Donohue v. Southwestern Surety Ins. Co., 202 S. W. 272, Id. 219 S. W. 930.) This court held to the contrary in Rodgers v. Insurance Co., 172 Mo. App. 719, 155 S. W. 874; but we were in error in so holding. That ruling was in conflict with the ruling of the Kansas City Court of Appeals in Spangler v. Protective Ass’n, 172 Mo. App. 255, 157 S. W. 667. In the later Donohue case, cited above, the Kansas City Court of Appeals adhered to its ruling in the Spangler case, supra, and certified the case to the Supreme Court where the opinion of the Kansas City Court of Appeals was approved and adopted. (See Donohue v. Insurance *177 Co., 219 S. W. 930.) Consequently the Rodgers ease, on this point, should no longer be followed. It follows that if a foreign insurance company has no agent or office, or other place of business, in the county in which a judgment of a justice of the peace is rendered against it, such company has twenty days in which to appeal from such judgment. But if the foreign insurance company has an agent, office or other place of business within such county, it is to be regarded as a resident of the county, within the meaning of Section 7568, supra, and consequently has but ten days within which to take its appeal. (See Donohue v. Insurance Co., supra; Spangler v. Protective Ass’n, supra.) Therefore, in the case before us, whether defendant’s appeal from the judgment' of the justice of the peace was timely taken depends upon whether or not defendant, at the time involved, had an office or other place of business, or an agent for the transaction of its business, in the City of St. Louis. There is no testimony in the record touching this matter. In plaintiff’s motion to dismiss the appeal it was alleged that the defendant then maintained an office in the Y. M. C. A. building in the City of St. Louis; but the record merely recites that this motion was submitted and was sustained. It does not appear that any testimony was taken at the hearing upon the motion. However, the record shows that the affidavit for appeal filed by defendant before the justice of the peace was signed and sworn to by one George D. Wright, who gave his address as “2355 S- 39th, St. Louis, Mo.” And in this affidavit Wright stated that he was agent and manager of the defendant company. It is true that the affidavit states that the defendant is a nonresident of the City of St. Louis; but under the circumstances this must be regarded as a conclusion on the part of the affiant. Wright likewise executed an appeal bond, upon said appeal from the justice of the peace to the circuit court, executing the same in the name of the defendant insurance company “by Geo. D. Wright, agent and manager, address 2355 S. 39th street.” *178 While from this record it cannot perhaps he judicially found that defendant -had, at the time, an office in the City of St. Louis, it does appear that the defendant had, at least, a resident agent in that city for the transaction of its business. And this being true, the trial court did not err in holding that defendant was a resident of the City of St. Louis, within the meaning^ of Section 7568, supra, and that consequently it was required to take its appeal from the judgment of the justice of the peace within ten days after the rendition thereof. It follows that the order below dismissing defendant’s appeal should be affirmed, and it is so ordered. Reynolds, P. J., and Becker, J., concur.