Equity Life Ass'n v. Gammon

Lamar, J. When the case was here before, it was decided that service upon Printup was not service upon the company; that if the company did not in the first instance designate an agent under the Civil Code, § 2057, it was a misdemeanor for its agents to transact business in Georgia; that the statute nowhere authorized the commissioner of insurance in the first instance to appoint an agent to receive service, although he had the power to name a successor to one already legally appointed, whenever the latter absented himself from the State. The amendment cures the defect; the allegation being that the company, when it first began to do business, had designated Proctor to receive service, that Proctor — 274 — had absented himself from the State, and that in conformity with the statute Printup had been duly appointed as his successor. It does not appear whether the appointment by the commissioner was made before or after the company’s withdrawal from the State, nor when it ceased to do business in Georgia. Nor are these things material, even under Cady v. Associated Colonies, 119 Fed. Rep. 420 (5), Friedman v. Empire Life Ins. Co., 101 Fed. Rep. 535, and other decisions holding that the company must be doing business in the State, as a condition precedent to authorize the power of appointment by the commissioner, or to make valid the service on the agent. While there is no allegation on the subject, the company is presumably collecting or receiving premiums on its outstanding Georgia policies. At any rate, it has business of a most important character in carrying out the contracts made, and in defending suits here instituted for the alleged breach thereof; and the power of appointment in the commissioner, and the authority of the agent thereunder, continue as long as there is any necessity to perfect service in suits for the violation of contracts made in this State. Civil Code, § 2058; Mutual Assn. v. Phelps (U. S.), 23 Supreme Ct. Rep. 707; Mutual Life Ins. Co. v. Spratley, 172 U. S. 603. There was no special demurrer on this point, the only issue being whether the agent had exceeded his authority in making an acknowledgment, and whether the suit should proceed in Carroll or Floyd county. While it is alleged that the contract was made in Carroll, it appears that the company now maintains no agency in this State. But it does not follow that because there is no agency there can be no suit. So to hold would be to enable the company to take advantage of its own wrong. The statute was never intended to authorizes foreign corporation to make contracts, and then, by discontinuing business, to escape liability to suit here on such contracts. It was permitted to solicit business on condition that it would appoint some agent upon whom service could be made, and upon the further condition that if that agent absented himself the insurance commissioner could designate some one as his successor. The contract having been made here, and the company being suable in this State, the only question to be determined is where that suit shall be brought. There being no agency, and therefore no venue fixed under the Civil Code, §2145, the company is to — 275 — be treated as a non-resident and suable here wherever it can be found. Compare Civil Code, § 4954 ; National Bank v. Southern Co., 55 Ga. 39; City Fire Ins. Co. v. Carrugi, 41 Ga. 660; E. T., V. & Ga. R. Co. v. Williams, 90 Ga. 520. It is found wherever service can be perfected on its authorized attorney, and this is wholly independent of such attorney’s residence. The statute declares that the agent may acknowledge service of process in behalf of .such company in all proceedings that may be instituted agaiust such company “ in any court in this State ” — not in any court of the county in which he resides. When Printup acknowledged service of a suit in Carroll county, there is enough on the record to show that the company was found in that county. In Stone v. Travelers Ins. Co., 78 Mo. 655, under a statute with provisions practically identical with those contained in the Civil Code, §§ 2058, 2059, a suit was brought against a non-resident company in Linn county. The writ of summons was directed to the sheriff of St. Louis (which by a statute is placed upon the same footing as a county) and there served upon the agent designated by the statute. It was ruled that “ Suits against foreign insurance companies are not required to be brought in the county in which the agent appointed . . to receive service of process resides. They may be brought in any county in the State; and if the agent lives in another county, the writ is to be directed to the sheriff of the latter county.” Hough, C. J., said: “ The sheriff of Liun county has no general power to serve process beyond the limits of his county, and there is no special provision in cases like the present, authorizing the sheriff to serve process in any other county: As the section quoted authorizes process issued .by any court in .the State to be served upon the agent or attorney of the foreign insurance company appointed to receive service, such agent may, of course, be served wherever found in this State.”. Compare Civil Code, § 4989; Mitchell v. S. W. R. R.,75 Ga. 404. The case of N. Y. &c. R. R. v. Estill, 147 U. S. 591, is much in point; for suit was brought against a foreign corporation in Saline county, and process served upon an agent in St.' Louis, by the sheriff of St. Louis. It was held that the service was good, “and that the defendant was within the provisions of the Missouri statute which made non-residents suable in any county of the State,” the ruling in the Stone case being cited and followed. So iu People v. Justices, — 276 — 11 N. Y. Supp. 773, it appeared that a foreign corporation was liable to suit in the State of New York. Action was brought against it in the city court of New York, and service made upon the superintendent of insurance, who had an office in Albany. The court said (Daly, J.): “ Ordinarily, a summons in an action in the city court of New York can not be served without the city of New York, but an exception was evidently intended by the legislature in the case of actions against foreign insurance corporations; for the city court is given jurisdiction of such actions, and the legislature has provided that process against such corporations may be served upon the superintendent of insurance. This officer has his office in Albany, and there the process must be served upon him. We must conclude, therefore, the legislature intended city court process to be served upon him there.” And in Boyer v. Northern Pacific Ry. Co. (Idaho), 66 Pac. Rep. 826, it was held that a foreign corporation does not acquire a fixed residence in the State by designating an agent upon whom process may be served under the provisions of section 2635 of the revised statutes of that State, which requires the company to designate such agent. In the multiplication of corporations, and the increase of their business beyond the limits of the parent State, conditions arose which demanded a modification of the old rulings that as they could not migrate, neither could they be sued, except where incorporated. It was a mere fiction that they could not migrate; for in fact they did business, entered into contracts, made profits, maintained agencies, and had agents in foreign States. They were there present in the person of the agent; and if there for the purpose of doing business, they were also there present in his person for the purpose of being sued. In going into the foreign State for the purpose of doing business it at the same time submitted itself to the jurisdiction of its courts in suits arising out of contracts made in the course of such business. There is, then, no question of jurisdiction, but only one of venue and service, to be determined by the laws of the State applicable to those subjects. They can be sued in the counties in which they maintain agencies; or if none, then in any county where they may be found in the person of the agent. Civil Code, §§ 4954, 1899. If a foreign insurance company maintains an agency, the Civil Code, §2145, requires that suit be brought in the county in which such agency is — 277 — located; but where there is no agency, it sets the matter at large, and the courts of any county in which the company may be found, or in which service may be lawfully perfected, have the power to determine the liability of the company on the contracts here made. If the case is not to be governed by section 2145, it falls under the broad provisions of section 2057, requiring the company in the first instance to-appoint, and authorizing the commissioner in the second instance to name a successor “ to acknowledge or receive service of process, and upon whom process may be served, for and in behalf of such company, in all proceedings against such company in any court of this State, or any court of the United States in this State, and consenting that service of process upon any agent or attorney appointed under the provisions of this section shall be taken and held to be as valid as if served upon the company.” Section 2058, in providing for the appointment of a successor, declares that the appointment “shall be as valid as if made by the company,” and that “ service of process as aforesaid, issued by any such courts as aforesaid upon any such attorney appointed by the company or by the insurance commissioner, shall be valid and binding, and be deemed personal service upon such company so long as it shall have any obligations or liabilities outstanding in this State, although such company may have withdrawn, been excluded from, or ceased to do business in this State.” Ordinarily no notice need be given the opposite party upon taking an order making a remittitur from this court the judgment of the lower court. Civil Code, §§ 5597, 5598. But where the judge, before the presentation of the order, is notified of an intention by the losing party to offer an amendment, the prevailing party is entitled to be heard on the question as to whether it shall be allowed. The time when this shall be determined is in the discretion of the presiding judge; and unless some legal damage results from the delay, or there is some abuse of discretion, this court will not interfere. There may be cases in which the trial judge ought to make the remittitur the judgment of the lower court without delay, or with little delay. Where plaintiffs in error have been restrained of their liberty, and as a result of the reversal are entitled to a discharge; or where property has been, placed in the hands of a receiver, or injunctions have been granted ; or it has been decided that the court below erred in refusing to — 278 — appoint a receiver or grant an injunction, the remittitur should be promptly made the judgment of the lower court. Civil Code, §§ 5597, 5598. The present case presented no such facts calling for immediate action. Judgment affirmed. All,the Justices concur.