Rand, McNally & Co. v. Mutual Fire Insurance

Mr. Presiding Justice Waterman delivered the opinion of the Court. It is first insisted by appellant that the receiver was hot legally appointed. It is alleged in the declaration that in pursuance of the statute a petition was filed against the said Mutual Ins. Co.; that summons was duly served upon said company, and it , appeared and filed its answer to said petition; that thereafter in said cause a receiver was appointed. Such being the case we do not think that appellant can in the present suit contest the legality of the appointment of such receiver. The court had jurisdiction of the subject-matter and of the parties in the proceeding in which the receiver was appointed, and its action can not now be collaterally attacked. The allegation in the petition that the assets of the company were insufficient to justify its continuance in business and to pay its debts and liabilities, was equivalent to an allegation that “ its further continuance in business would be hazardous to the insured therein,” or hazardous to the public. High on Eeceivers, Sec. 203. By the appointment of a receiver the company was restrained from the further continuance of its business. There was a hearing upon the merits; ample opportunity was given the company to deny the allegations of the petitioner. It is next urged that the appointment made is not in accordance with the charter and by-laws of the company. A receiver having been appointed, the court exercises at its discretion the powers of the board of directors as well as such additional authority as is conferred by statute. We do not think that in this suit appellant can question the propriety of the amount of the assessment ordered by the court. It is manifest that to permit this might result in a multitude of variant decisions as to the magnitude of the assessment to be made. We do not wish to be understood as holding that appellant can not, in a proper and direct proceeding, attack the assessment for fraud in the making or magnitude, thereof; the late case of Farwell v. The Great Western Telegraph Co. et al., is an instance of such attack having been successfully made. The declaration alleges that notice was given to the defendant of the assessment, and demand of payment made; and that although more than thirty days have elapsed since the giving of said notice and the making of said demand, the defendant has failed and refused' to pay said assessment or any part thereof, and that thereby by force of Sec. 13 of Chap. 73, of theRevised Statutes, the defendant became and is liable to pay to the plaintiff the whole amount due upon the said note, viz., $1,470. Section 13 of Chap. 73, Revised Statutes, provides that the board of directors shall, as often as they deem necessary, settle and determine the sum to be paid by the several members thereof, and publish the same in such manner as they may choose, or as the by-laws prescribe. And that “ If a member neglect or refuse for the space of thirty days after publication of such notice to pay the sum assessed upon him as his proportion for any loss as found, the directors may sue for and recover the whole amount of contingent liability, with costs of suit, but execution shall only issue for assessments and costs as they accrue.” We do not regard the allegation of notice; there is no charge that notice was published, as sufficient to warrant a judgment for the entire amount of defendant’s contingent liability. The judgment of the Circuit Court will be reversed and the cause remanded, unless appellee shall, within ten days, remit so as to make the amount of the judgment $955.50, being the sum assessed. In any event appellant will recover its costs in this court. Reversed and remanded unless remittitur is filed.