Farmers & Merchants Ins. v. Harrah

47 Ind. 236

• Court: Indiana Supreme Court
• Decided: May 15, 1874
• Status: Published

Opinions

Buskiric, J.

This was an action by the appellant, a foreign insurance company, against the appellee, upon a premium note. There was issue, trial by the court, and a finding for appellee, motion for a new trial overruled, and judgment on the finding. The only error assigned is overruling the motion for a new trial.

The appellant offered in evidence a resolution, adopted by the appellant as required by the second section of "an act respecting foreign corporations and their agents in this State,” to which the appellee objected, upo.n the ground that it was. not certified in the manner required by the law. It was certified under the seal of the corporation. It is contended that it should have been a sworn copy, as required by section 284 of the code, 2 G. & H. 184. We do not find it necessary to decide the question discussed. The resolution or order was passed and certified on the 18th day of November, 1863. The order was passed and certified, as is shown by the order, in pursuance of the second section of the act approved June 17th, 1852, 1 G. & H. 272. Such actwasnot in force at that time. The second section of that act required, as a condition precedent to the right to take risks or transact any business, that a duly certified copy of an order, or resolution, authorizing any agent transacting business in this State to acknowledge service of process, in any action against such company, to be filed with the clerk of the circuit court of any county in which such company proposed to take risks or transact business.

The act approved March 2d, 1855, repealed, by implication, the act of June 17th, 1852, so far as foreign insurance companies are concerned. By the later act, it is provided, “that it shall not be lawful for any agent or agents of any insurance company, incorporated by any other state than the State of Indiana, directly or indirectly to take risks or transact any business of insurance in this State, without first producing a certificate of authority from the Auditor of State.” The two acts are repugnant. They can not both stand, and be enforced. In such case, the last expressed will of the legislature is to prevail.

The act approved December 21st, 1865, is a substitute for the act approved March 2d, 1855. Hoffman v. Banks, 41 Ind. 1.

The certificate offered in evidence did not conform to the requirements of the act of 1855. The ruling of the court was right.

The judgment is affirmed, with costs.