Rodgers v. National Council Junior Order United American Mechanics

155 S.W. 874, 172 Mo. App. 719, 1913 Mo. App. LEXIS 518

• Court: Missouri Court of Appeals
• Decided: April 8, 1913
• Status: Published

Opinion

NORTONI, J.

This is a suit on a certificate of life insurance in the amount of $500. The case originated before a justice of the peace, where plaintiff had judgment, and defendant prosecuted an appeal therefrom to the circuit court. The circuit court dismissed the appeal from the justice on the ground that it was-not prosecuted within the time prescribed by the statute — that is, ten days after judgment — against one who' is a resident of the county. From this judgment of' the circuit court defendant appeals here; and the question for consideration presents the inquiry as to-whether defendant, a nonresident fraternal beneficiary association, qualified as such under our statutes; is a. resident of the county in which it was sued and, furthermore, should such association be regarded as an insurance company defendant within the purview of our statutes conferring authority on justices of the-peace in every county of the State as to them?

Under statute section 7568, Revised Statutes 1909,, appeals from a justice of the peace to the circuit court must be made within ten days after the judgment-of the justice is rendered, but if the party appealing, is a nonresident of the county where the suit was instituted, twenty days are allowed instead of ten in which an appeal may be perfected.

Defendant is an incorporated foreign fraternal beneficiary association, but prior to the institution of this suit it had qualified as such in this State by fully complying with our statutes provided in that behalf. Among other things to that end, it had appointed the Superintendent of Insurance as its attorney, upon whom service of all lawful process in actions against it should be had. Plaintiff instituted the suit before a justice of the peace in the city of St. Louis, and a summons was duly issued by the justice, directed in accordance with the statute to the sheriff of Cole county,. Missouri, in which Jefferson Gity, the State capital, is located, and it was there duly served on the State Superintendent of Insurance by the officer. In obedience to the command of the writ, defendant appeared before the justice of the peace and contested the action, but judgment was given against it on December 27. Thereafter, on January 10 — that is, fourteen days after the judgment of the justice was given —defendant filed its affidavit and bond for appeal therefrom to the circuit court as though it were a nonresident of the city of St. Louis, which is regarded as a county under our law. As before said, the circuit court dismissed the appeal on the theory that, though defendant is a foreign institution, it should be regarded as a resident of the city of St. Louis and was therefore entitled to but ten days in which to perfect an appeal from the justice of the peace.

If it was competent to institute and maintain the suit against defendant before a justice in the city of St. Louis — that is, as if it were a resident of such city — then, of course, it would have been entitled to but ten days to prosecute an appeal therefrom, while, on the contrary, if defendant is to be regarded as a nonresident of the city, twenty days for its appeal are expressly allowed by tbe statute. [Sec. 7568, R. S. 1909.] The question as to tbe county in wbicb a foreign insurance company, qualified under our statutes to. do business in this State and by tbe appointment of tbe Superintendent of Insurance as its attorney, upon whom tbe service of process may be bad, is to be sued lias been expressly decided by tbe Supreme Court under tbe statute, wbicb we believe should control bere, as will appear by reference to Meyer v. Phoenix Ins. Co., 184 Mo. 481, 83 S. W. 479. In that case, tbe Supreme Court declared a foreign insurance company, which bad qualified to do business in Missouri and appointed tbe Superintendent of Insurance as its attorney, upon whom service of process should be bad in its stead, was to be regarded for tbe purposes of suit as a resident of each and every county and each and every township in every county in tbe State. There tbe defendant was a foreign insurance company authorized to do business in Missouri under our statutes, wbicb are now sections 7040, 7042, et seq., Revised Statutes 1909, and tbe plaintiff in tbe case was a resident of Warren county. Tbe suit was instituted by plaintiff in Montgomery county, and service of summons was bad on tbe Superintendent of Insurance at Jefferson City in Cole county, as tbe attorney of defendant for that purpose. On these facts, tbe Supreme Court declared that, though tbe plaintiff was not a resident of tbe county in' wbicb tbe suit was instituted, and though tbe defendant was in fact a foreign corporation, it was nevertheless constructively a resident of Montgomery county and therefore jurisdiction obtained in tbe justice of tbe peace eourt over both tbe subject-matter and tbe person.

But it is said, though such be true, defendant bere is a foreign fraternal beneficiary association and is therefore not amenable to tbe same rule of decision. Touching tbe matter of such foreign fraternal societies qualifying under our law for tbe transaction of business in this State and in respect of tbe appointment of the Insurance Superintendent as attorney upon whom, service of process is to be bad, tbe statutes are in all material respects tbe same as those pertaining to the same subject with regard to foreign insurance companies. Sections 7109, 7112, 7114, Revised Statutes 1909, authorize such foreign societies to do a fraternal life insurance business in this State upon' complying with certain statutory provisions, among which it is required that tbe Superintendent of Insurance shall be appointed in writing as tbe true and lawful attorney of the society, upon whom 'all lawful process in any action or proceeding against it may be served with entire validity as though it were served upon the association. In considering the statute of like- import concerning foreign insurance companies, together with the fact that service was had on the Superintendent of Insurance as the attorney of the company and construing what are now sections 7398, 7399, Revised Statutes 1909, conferring jurisdiction on a justice of the peace over such insurance company, the Supreme Court declared in Meyer v. Insurance Company, supra, such companies should be regarded as residents of every county and every township in the State, for it is said the latter sections enabled service to be had on the Insurance Superintendent as though he were present representing the company in each county and township in the State.

Section 7398, Revised Statutes 1909 provides: “Every justice of the peace shall have jurisdiction coextensive with the county for which he shall be elected or appointed, and in all cases where the defendant, garnishee or proposed garnishee is an insurance company not incorporated by or organized under the laws of this State, every justice of the peace shall have jurisdiction and authority to issue process therein and direct the same, for service, to any constable or sheriff of the city or county where the Superintendent of Insurance resides or has his office. ’ ’ This section seems to contemplate that a foreign insurance company, qualified under the Missouri statutes, as above stated, may, through service had on the Superintendent of Insurance, be brought to answer into the court of any justice of the peace in the State, and it is because of this, as we understand it, that the Supreme Court declared such insurance companies to be constructive residents of every county in the State, for their representative, the Superintendent of Insurance, is ever available there under the summons of the justice.

But though such be true, there appears to be no express provision in our statutes for the justice of the peace to acquire jurisdiction ‘over foreign fraternal beneficiary societies, even though they have appointed the Superintendent of Insurance as their attorney to receive service of process. However this may be, it would seem that a fair construction of the statutes above copied would include those societies engaged in the business of life insurance with us. It is true that fraternal beneficiary societies are not insurance companies in the broad sense of that term, but no one can doubt that they are engaged in the business of insurance and, indeed, usually come into being for' and subsist on that business. In one sense, the certificates that they issue are to be regarded as life insurance contracts and the associations themselves, though fraternal and beneficiary in character, as insurance companies. [See State ex rel. v. Merchants’ Exchange, etc., 72 Mo. 146; Morton v. Sup. Council, 100 Mo. 76, 90, 73 S. W. 259.] In declaring the sense of a statute, the court should effectuate its obvious intent in favor of remedial justice rather than infringe its spirit by a narrow and technical construction. In this view, it seems entirely clear that the statute quoted (Sec. 7398) should be regarded as including foreign fraternal benefit societies qualified under our law and engaged in the business of life insurance as contemplated by the Legislature to be within the words “insurance companies” therein employed. Especially should this view obtain when we remember that foreign fraternal societies prosecute their calling here, and, upon qualifying under our law to that end, give authority to the Superintendent of Insurance, identically as other foreign insurance companies, for the purpose of being-served with process in their stead. Under the rule of Meyer v.. Insurance Co., supra, this defendant should, therefore, be regarded as a resident of the city of St. Louis at the time the suit was instituted against it and, of course, at the time it sought-to perfect its appeal from the judgment of the justice therein given.

Under the statute (Sec. 7568, R. S. 1909), it has. been frequently determined that railroad companies should be regarded constructively as residents of the counties through which the railroads pass and in which they keep a station agent on whom service of process may be had, for it is said, if service of process may be had on the agent, they should be regarded as -residents of the county and entitled to ten days only for the purpose of perfecting an appeal from the justice. [See Slavens v. R. R. Co., 51 Mo. 308; Harding v. R. R. Co., 80 Mo. 659; Crutsinger v. Railway Co., 82 Mo. 64.] This court declared the. same rule concerning a nonresident manufacturing corporation (but not qualified here) which operated a sawmill in this State in charge of an agent on whom service of process might be had under the statute. The view was there expressed that if the defendant maintained an agent in the county on whom service of process was proper under the statute, it should be regarded as a resident of the county for the purpose of perfecting an appeal from the justice and therefore entitled to but ten days to do so. [Young v. Niles & Scott Co., 122 Mo. App. 392, 99 S. W. 517.] The sum and substance of the authorities, under this statute, go to the effect that if it is competent to confer jurisdiction on the justice by instituting a suit in the particular county over a corporation not a resident of the county, in the full sense of that term, so that a valid personal judgment may be had on due service of summons, the defendant should be regarded as a resident of the county in perfecting his appeal therefrom. The judgment should therefore be affirmed. It is so ordered.

Reynolds, P. J., and Allen, J., concur.