Pardue v. . Absher

Clark, C. J. The defendant contends that the judgment was void as to the Fidelity and Guaranty Company because the summons was not served upon the Insurance Commissioner. In Fisher v. Ins. Co., 136 N. C., 224, it was held that service of process on an insurance company is not restricted to that method as prescribed by Revisal, 4750, but that it may be made also in the manner prescribed by Revisal, 1243. It is unnecessary to consider' whether it may not be made also in the manner j)rescribed by Revisal, 440, for this is not an insurance company, but a bonding company authorized under Revisal, 4805, and that section does not require service of process upon the Insurance Commissioner, though they must be licensed by that officer. Service, therefore, under Revisal, 440 (1) is valid when made upon a local agent of such corporation, and it is therein provided that “Any person receiving or collecting moneys within this State for or on behalf of any corporation of this or any other State or government shall be deemed a local agent for the purpose *679 of tbis section.” Indeed, the term “local agent” is not limited to those receiving money for the company. Copeland v. Tel. Co., 136 N. C., 11. Nor is it necessary to consider whether upon the facts of tbis case the company has waived a failure of service upon a proper officer, if such bad.been the case, by appearance in the action or by acquiescence in the judgment, for the defendant company has paid off the judgment, with notice of all the facts, and without protest. It is an “elementary rule that unless otherwise provided by statute, a party cannot, either by direct action or by way of set-off or counterclaim, recover money voluntarily paid with tbe full knowledge of all tbe facts, and without any fraud, duress or extortion, although no obligation to make such payment existed.” 30 Cyc., 1298. Tbis applies to voluntary payments by corporations (ib., 1300), and “Money voluntarily paid to satisfy a judgment which has not been reversed cannot be recovered back, and it is immaterial that tbe recovery was fraudulent. Payment of a judgment is voluntary unless made to procure tbe release of the goods of tbe party making tbe payment after seizure, or to prevent their seizure by an officer armed with tbe authority or apparent authority to seize them.” Ib., 1302. It can make no difference that afterwards tbe appellant alleged that it made payment 'to prevent a revocation of its license to do business in this State. It made no protest at tbe time, and tbe fact that it thought it was to its advantage to pay tbis judgment cannot vitiate tbe effect of tbe unrestricted payment in full of tbe judgment, without protest. Moreover, tbe judgment having been paid and cancellation entered on tbe docket by tbe clerk before service of tbe restraining order, there is no judgment to be set aside and no ground to restrain tbe payment of the money over to tbe plaintiff, as whose agent tbe clerk held tbe same, for there is no allegation of fraud or deceit in procuring tbe payment to be made. There was full discussion and correspondence, and tbe company ordered the' payment to be made with full knowledge of all tbe facts. Affirmed.