State ex rel. Jenkins v. Equitable Indemnity Ass'n

The opinion of the court was delivered by Gordon, J. This action was instituted by the state on the relation of the secretary of state for the purposes of the appointment of a receiver and the winding up of the affairs of the appellant corporation. The appellant is a corporation of this state, and prior to the institution of this action the secretary of state, as ex officio insurance commissioner, had revoked its certificate of authority te do [515] business, pursuant to section 9, cb. 82, Session Laws 1895, p. 154 (Bal. Code, § 2813). Tbe company has appealed from a decree dissolving tbe corporation and appointing a receiver to wind up its affairs. Tbe first error assigned is tbe ruling of tbe court which denied appellants motion for non-suit. It was urged in support of tbe motion that tbe complaint in tbe action did not show that tbe corporation was an insurance corporation and subject to tbe jurisdiction and control of tbe relator. There was no demurrer to tbe complaint, nor any objection to its sufficiency until tbe interposition of tbe motion for non-suit.. At that time there was proof before tbe court showing conclusively that tbe appellant was an insurance corporation and subject to tbe laws of this state governing such corporations, and this proof was made by tbe appellant itself upon cross-examination of tbe deputy insurance commissioner. Tbe court bad before it at that time tbe certificate of incorporation, under tbe seal of tbe secretary, and also tbe certificate of tbe insurance commissioner showing that appellant bad complied with tbe laws of tbe state "regulating and governing tbe transaction of insurance business in tbe state, etc.,” for tbe years 1896 and 1897. Tbe defect in tbe complaint was cured by tbe proof which was made without objection and by tbe appellant itself. Tbe motion was properly denied. There was no abuse of discretion upon tbe part of tbe trial court in tbe examination of appellant’s witness, and we think that.there was sufficient proof to sustain tbe finding that tbe appellant was insolvent within tbe meaning of tbe law under which it became tbe duty of tbe relator to institute this action for tbe revocation of appellant’s charter. It appeared that tbe only available assets of tbe corporation consisted in certain demand notes executed by tbe officers of tbe company, and $1.40 in cash. Tbe value [516] of the notes was not shown, hut the proof showed that there were unadjusted losses aggregating about twelve or thirteen hundred dollars, and it was admitted that appellant’s liability thereon would amount to $960. To meet-this liability, and such other losses as might arise upon outstanding policies, and to pay its .current expenses, appellant relied upon the payment by its policy holders of quarterly dues. But whether the amount derivable from such source would be sufficient to enable it so to do is a matter of conjecture. Upon the entire record we think the court was right in decreeing a dissolution of the corporation and appointing a receiver to wind up its affairs. Affirmed. Scott, C. J., and Dunbar, Anders and Beavis, JJ., concur.