Michigan State Insurance v. Abens

Sibley, J. An action of assumpsit was commenced in the City Court of Aurora, by Stephen Abens against the appellant, upon a policy of insurance issued by it to indemnify him in case of loss from fire. At the June term of that court a judgment by default was entered against the company. Afterwards during the term, a motion was made to set aside the default on account of an insufficient service upon the defendant in the suit, which reads as follows: “ Served this on the within named, the Michigan State Insurance Co. of the city of Adrian, Michigan, by reading and by delivering a copy to C. H. White and David Iliff, as agents for said company, the president of said company not found in the city of Aurora, Kane county, Illinois, this 10th day of May, 1876. “Chas. S. Mixes, Sheriff, “By I. W. Kice, Deputy.” And for leave to plead. Affidavits were filed in support of the motion, from which it appeared that White and Iliff had ceased to be agents .of the company for a considerable period previous to the service on them. The court refused to open the default and allow the company to plead to the action. From that decision an appeal was taken, and this is the only question presented for our consideration. A service very similar was held in The Illinois and Mississippi Telegraph Co. v. Kennedy, 24 Ill. 319, to be insufficient. It was there said that the return must be positive and the sheriff takes upon himself the responsibility of determining the fact whether the service was actually made upon an officer of the corporation. The service here is defective not only in this respect, but it is also open to another objection. It states that the president of the company was not found in the city of Aurora. What is the inference to be drawn from that statement? Simply that he might have been found outside of the city, in the county of Kane, if search had been made. This is not a compliance with the statute, which authorizes' a service upon an agent only in case the president cannot be found in the county where the suit is brought. Counsel for appellee make one point which will be noticed. The other reasons urged, especially those outside the record, cannot be expected to have any influence upon the decision of the case in this court. Sec. 22 of Oh. 73, of the revised laws of 1874, in relation to fire insurance companies, reads that “ in case any insurance company not incorporated in this State, shall cease to transact business in this State according to the laws thereof, the agents last designated or acting as such for such corporation, shall be deemed to continue agents for such corporation, for the purpose of serving process for commencing action upon any policy or liability issued or contracted while such corporation transacted business in this State; and service of such process for the cause aforesaid upon such agents shall be deemed a valid personal service upon such corporation.” When a foreign insurance company has ceased to transact business in this State, the agents last designated are deemed to continue in office, for the purpose of serving process upon the corporation. This in no respect changes the rule stated in The Illinois and Miss. Telegraph Co. v. Kennedy, supra. It is wholly immaterial whether the agent is created by the corporation or continued in office- by force of the statute. The service should be the same, and the officer making it in either case must take upon himself the obligation of stating the fact of agency in positive terms. Although the company may have, as is insisted, withdrawn its business from the State, still, to render the service a valid one u'nder the statute on a person not at the time an officer of the corporation, it must be made upon its agents last designated or acting as such. How is the proof upon that subject in the present case? Hot that White or Iliff were the last designated or acting agents of the company, or even amongst the last in this State, but that one E. S. Critchell, residing in Chicago, had been continued after White and Iliff were discharged, and was at the time of this service acting as agent of the company. The statute evidently refers to the agents last acting in the entire State, and not to such as may have been dispensed with in any pa* ticular county where the plaintiff happens to reside, provided others remain in the jurisdiction upon which service can be made. This it was doubtless seen would afford an ample remedy in such cases, as by the practice act the Circuit Court was empowered to send its process to any county in the State where the' last acting agent might be found. The City Court erred in not setting aside the default, and allowing the defendant to plead. The judgment is therefore reversed and the cause remanded, with leave to the appellant to plead to the merits of the action. Reversed and remanded.