Morgan v. Mutual Benefit Life Insurance

The defendant insurance company, although it has been properly served with the summons, attacks the order directing the service by publication of the summons upon its nonresident codefendants, upon the ground that such service will not be effective and a judgment so obtained will not be binding upon the defendants served in that manner.

The action is brought upon a life insurance policy of $5,000, issued by the insurance company and delivered in this state to a resident thereof, who assigned the same, with the consent of the insurance company in the state, the assignee also being a resident thereof. The policy is now in the state, and held and owned, as the complaint alleges, by the plaintiffs, who are trustees under the will of the assignee, and are likewise residents of the state. The assignment was made as collateral security for premiums advanced by the assignee upon the policy, amounting to about the sum of $4,500, and which is the sum claimed by the plaintiffs, leaving due to the beneficiaries about $500,. to which the plaintiffs make no claim. The beneficiaries are made codefendants with the insurance company. They are all nonresidents of this state, residing in the states of California, Iowa, Missouri, and Colorado. The insurance company is a foreign corporation, incorporated under the laws of the state of New Jersey, but does business in this state under a license issued by the superintendent of insurance, and is subject to the laws of this state as regards the business done here, having made deposits of securities with the superintendent of insurance for the protection of its policy holders, and appointed him as its agent and attorney, upon whom all process may be served the same as though the insurance company were a domestic corporation. The policy does not seem to fix a particular place of payment by its terms.

The insurance company admits its liability upon the policy upon which the plaintiffs’ cause of action is based. It contends, however, that'there are conflicting clairriánts to the insurance moneys, and sets up in its answer the pendency of another action by its codefendants against it in the state of California to recover upon' the same policy. The question which the defendant insurance company seeks to have determined upon this appeal is whether a judgment so obtained against it and its codefendants will be binding upon its codefendants as between itself and them, and so protect the insurance company in paying out the moneys due upon the policy in accordance with the judg

The complaint alleges the assignment of the policy to the plaintiffs’ testator, and further alleges that the plaintiffs are now the holders and lawful owners of the policy as security for the payment of the moneys paid as therein stated, amounting to the sum named. The mere fact that the assignment was made as collateral security, and that the beneficiaries therein named may reinvest themselves with title to the policy by paying the amount due to the plaintiffs, does not deprive them of the right to collect the amount due to them from the insurance company. The claim is a direct liability against the insurance company. The fact that there are conflicting claimants to the insurance moneys, or that there are suits threatened or have since the commencemenf of this action been- brought against the insurancé company in other states, is not sufficient reason for requiring the plaintiffs to bring in all other persons claiming adversely to them as parties to this action, nor to refrain from proceeding in this action against the insurance company without them. If embarrassment arises to the insurance company from conflicting claimants residing in different states and bringing actions therein upon the same claim, it is the necessary result of going out of the state where it was incorporated into other states and doing business therein, and voluntarily submitting itself to the conditions imposed by the laws of the particular state in which it carries on the business. It is no answer to such actions that a judg

“(5) Where the complaint demands judgment, that the defendant be excluded from a vested- or contingent interest in or lien upon, specific real or personal property within the state; or that such an interest or lien in favor of either party be enforced, regulated, defined or limited; or otherwise affecting the title to such property.”

The statutory construction law defines the term "personal property” as follows:

“The term ‘personal property’ includes chattels, money, things in action, and all written instruments themselves, as distinguished from the rights or interests to which they relate, by which any right, interest, lien or incumbrance in, to or upon property, or any debt or financial obligation is created, acknowledged, evidenced, transferred, discharged or defeated, wholly or in part, and everything, except real property, which may be the subject of ownership. The term chattels includes goods and chattels.” Section 4, Laws 1892, p. 1486, c. 677.

It is, however, urged on behalf of the insurance company that' the subject-matter of this action is not personal property having a situs within the state. As has already been pointed out, the insurance company, although a foreign corporation, incorporated under the laws of the state of New Jersey, does business in this state under a license-issued by the superintendent of insurance, and is subject to his supervision the same as a domestic insurance company. Insurance Law, Laws 1892, p. 1941, c. 690, § 25. It is required to keep securities on deposit with the superintendent of insurance to be held in trust for the benefit of the policy holders. Insurance Law, § 26. It is also reT quired to execute and file a written appointment of the superintendent of insurance as agent and attorney in this state, upon whom “all lawful process in any action or proceeding against the corporation may be served, with the same effect as if' it was a domestic corporation. Service upon such attorney shall thereafter be deemed service upon the:

The question of the situs of intangible rights and claims of this character have frequently arisen in attachment proceedings and judgments based thereon attacked for want of jurisdiction, where personal .service of process was not made upon the parties against or upon whose right or claim such process or adjudication was made. We are well aware that the decisions upon that question may not be in accord (20 Cyc. 1036, 1037), and we shall not attempt to reconcile them. The courts of our own state have frequently passed upon the question, and the following cases may serve as types of two classes, one where the proceeding has been held ineffective and void, and the other where the proceeding has been held valid: Douglass v. Phœnix Ins. Co., 138 N. Y. 209 , 33 N. E. 938 , 20 L. R. A. 118 , 34 Am. St. Rep. 448 ; National Broadway Bank v. Sampson, 179 N. Y. 213 , 71 N. E. 766 , 66 L. R. A. 606 , 103 Am. St. Rep. 851 ; India Rubber Co. v. Katz, 65 App. Div. 349 , 72 N. Y. Supp. 658 ; Lancaster v. Spotswood, 41 Misc. Rep. 19 , 83 N. Y. Supp. 572 , affirmed in 86 App. Div. 627 , 83 N. Y. Supp. 1109 . In the first two cases it was held, upon the state of facts as there presented, that the attachment proceedings and adjudication based thereon was not effective, while upon another state of facts somewhat different the last two cases held the attachment good and the proceedings valid. The facts of the two classes of cases are alike in many respects. We need not stop to point out the precise ■difference. We assume that they are in entire harmony and accord, but think that the facts in this case are quite analogous to those in the last two cases, and that this case is within that class where the attachment was upheld and the seizure thereunder effective. The question has been quite recently before the United States Supreme Court in two cases. Harris v. Balk, 198 U. S. 215 , 25 Sup. Ct. 625 , 49 L. Ed. 1023 ; Louisville & Nashville Railroad Co. v. Deer, 200 U. S. 176 , 26 Sup. Ct. 207 , 50 L. Ed. 426 . In the Harris Case a resident ■of North Carolina, who was owing another resident of that state, went temporarily to Maryland, and while there was garnisheed by the creditors of the man whom he was owing in an action brought in a court of that state; the principal defendant therein being served with process by publication according to the laws of that state. Judgment was entered and the garnishee paid the same. After the garnishee’s return to the state of North Carolina he was sued by his creditor in that state. He pleaded the Maryland judgment and payment thereof as a defense, but the North Carolina court refused to recognize the

“We can see no reason why the attachment could not be thus laid, provided the creditor of the garnishee could himself sue in that state and its laws permitted the attachment.”

The question was again presented in the Louisville & Nashville Railroad Company v. Deer, supra. In that case it appeared that the railroad company did business and was liable to service and suit in the state of Florida, and was owing a resident of the state of Alabama. The creditor of the latter brought suit in Florida, in which the railroad company was summoned as garnishee; the Alabama creditor,. the principal defendant therein, being served by publication only. A judgment was recovered, the railroad company paying the sum due thereon into court. Thereafter the Alabama creditor brought suit against the railroad company in the state of Alabama. The Alabama court refused to recognize the Florida judgment and the payment made thereon, and upon appeal to the United States Supreme Court that judgment was reversed; it being held that the Florida judgment was valid against the Alabama creditor, and that the Alabama court should have given full faith and credit thereto under the provisions of the federal Constitution. It would seem, therefore, that under these decisions of the United States Supreme Court a claim for moneys due upon this policy from the insurance company to its nonresident codefendants would be subject to an attachment in this state by a creditor of such nonresident codefendants, for they themselves could sue the insurance company in this state upon their claim, and, if so, their creditors could attach the claim. So that whether the plaintiffs are-creditors of the insurance company or of the nonresident codefendants, or merely have a lien, it would seem to follow that the claim based upon the policy and the moneys due thereon has such a situs in this state as to enable the courts of the state to pass upon and subject it to-their jurisdiction by the proper process. Even if our local laws as declared by the courts of this state are inadequate to subject such a claim to seizure under a warrant of attachment, yet that is not decisive of the question involved in this case, since this proceeding is not an attachment. If the subject-matter of this suit and the cause thereof' is specific personal property within the state, although not attachable, it may be acted upon by the courts of this state, and the adjudication-, thereof be binding upon all the parties to the suit as a judgment in rem.

The suggestion is made that, the insurance company having been-i incorporated under the laws of the state of New Jersey, its domicile is there, and this suit may be maintained in the courts of that state. Undoubtedly that is true, but it also has at least a quasi domicile in, this state. The very purpose of requiring it to deposit Securities and appoint the superintendent of insurance as its agent and attorney was-

If such an action as this is not maintainable in the courts of this state, and the insurance company may resist payment on the policy without making all of the persons claiming an interest in the moneys due thereon parties to the suit, serving them personally with process, it is difficult to see how the company can be compelled to pay at all, unless all of the persons are in accord and unite in one suit or voluntarily appear therein, since the claimants reside in five different states. Certainly there is no more reason for bringing the action in the California court than here.

The order should be affirmed, with $10 costs and disbursements. All concur, except SPRING and ROBSON, JJ., who dissent.

The appellant is a life insurance corporation organized in the state of New Jersey, but authorized to transact business within the state of New York. In 1886 it issued a policy of insurance to Elizabeth A. Morgan upon the life of her husband, Orson A. Morgan. The policy provided that, in case the wife died before the insured, the amount of such insurance should be payable to his children. The policy, by its terms, was forfeitable in the event of the failure to pay the annual premiums stipulated in the instrument as they came due. On the 26th of March, 1871, the said Morgans were unable to continue the payments of said premiums, and assigned the same and all money due or to grow due thereon, with the assent of the appellant, to one Dayton A. Morgan, upon the agreement that said assignee pay said premiums, and the assignment was to be operative until all sums paid by him for premiums, with interest, should be repaid to him. Relying upon said assignment, the said Dayton A. Morgan, and after his death his successors in interest, now represented by the p’aintiffs, continued to pay all the premiums in accordance with the policy until the death of the insured in May, 1905. The aggregate sum so paid is $4,483.80, which the plaintiffs seek by this action in equity to establish, with interest, as a lien upon said policy and the money payable by its terms. The wife of the insured died a year before his death, and his children, all nonresidents of this state, are the persons upon whom substituted service was ordered. The insured and his wife, at the time of the issuance of the policy, were residents of the state of

The order for publication was granted pursuant to section 438, subd. 5, Code Civ. Proc. That section provides that such an order may be made “where the complaint demands judgment, that the defendant be excluded from a vested or contingent interest in or lien upon, specific real or personal property within the state; or, that such an interest or lien in favor of either party be enforced, regulated, defined, ■or limited; or otherwise affecting the title to such property.” The point of the controversy before us on this appeal is whether this policy ■of insurance is “specific personal property within this state”; and the proposition is a very troublesome one. The policy, as already noted,, was delivered in this state and the- first intended beneficiary and the insured resided here. Upon the death of the insured, his children became the beneficiaries, and the)' are the creditors and the insurance company the debtor. The plaintiffs are not creditors of the insurance company. Dayton' S. Morgan, the original ássignee loaned, “advanced,” to the wife of the insured the amount of the first premium, and thereafter, at her request, continued to pay the premiums as they matured from year to year. The policy was assigned, not absolutely to Morgan, but as a pledge for the payment of the debt. It may be that it was the expectation of the parties that repayment should come ■eventually from the avails of this policy, but Mrs. Morgan and the children would have been entitled at any time to a return of the policy and a cancellation of the assignment upon the payment of the debt secured by it. The insurance company agreed to pay the sum of $5,000 upon proof of death of the insured, which has been furnished, to Elizabeth Morgan if living upon the decease of her husband, and, in the event of her death, to the children of the deceased. The proposition is quite firmly established that the situs of a debt is at the abode ■of the creditor. Douglass v. Phœnix Ins. Co., 138 N. Y. 209 , 33 N. E. 938 , 20 L. R. A. 118 , 34 Am. St. Rep. 448 . There is an exception in favor of the creditor of a nonresident creditor in attachment proceedings whereby the situs of the debt is at the domicile of the debtor. In'this case the domicile of the debtor is in New Jersey, unless something in this transaction, or because it does business in this state, makes its domicile here. Undoubtedly the appellant could be sued in this state on this insurance contract. No one questions that. Thé

An insurance company doing business in various states is subject to an action on a policy issued by it in each jurisdiction, but comity among the states would probably prevent more than one recovery, and the first action would be likely to have the precedence. Sulz v. Mutual Reserve Fund Life Ass’n, 145 N. Y. 563 , 40 N. E. 242 , 28 L. R. A. 379 . The presence of the policy is not essential to the maintenance of the action, although a circumstance in aid of it. The res, or substantial thing, is the debt of which the policy is the evidence. Administrators of an intestate may be appointed in several states and claimants of the insurance may reside in each of them, and may bring actions at their places of residence to recover the amount due by the terms of the policy. The present case is not of that class. The action is in equity based upon the averment of an indebtedness to the plaintiffs’ assignor secured by the policy, and the purpose of the action is to establish the claim of the plaintiffs by reason of the premiums paid and make the claim a paramount lien upon the policy and the debt. The controversy is not with the insurance company, but with the nonresidents they desire to bring within our state to enable the litigation to be carried on. The only interest the insurance company has is to be certain that the nonresidents are brought within the j udicial domain of this state, so that the judgment in rem will be effective and a bar to any action by the children of the insured, to whom, upon the face of the policy, the insurance moneys belong. If this were an action at law to recover the amount due by the terms of the policy, a different nroposition might be presented from the one with which we now have to deal. A levy under a warrant of attachment is made upon personal property where manual delivery can be had, “including a bond, a promissory note, or other instrument for the payment of money, by taking the same into the sheriff’s actual custody” (section 649, subd. 2), and “upon other personal property by leaving a certified copy of the warrant * * * with the person holding the same,” if the property be a demand “other than specified in the last division, with the person against whom it exists (subdivision 3). In these subdivisions, therefore, distinct classes of personal property require different modes of service. Where the property is susceptible of delivery in specie, one method of service is provided for, and in that class of property is included an instrument for the payment of money. Where

In Trepagnier & Bros. v. Rose, 18 App. Div. 393 , 46 N. Y. Supp. 397 , it was held that a fire insurance policy under which a loss had occurred and been adjusted was not an instrument for the payment of money within subdivision 2, § 649. Upon appeal to the Court of Appeals ( 155 N. Y. 637 , 49 N. E. 1105 ) the question certified was as follows:

“Is a policy of fire insurance under which a loss has occurred which has been adjusted, and under which nothing remains to be done but the payment by the insurer to the insured of a fixed sum of money, an ‘instrument for the payment of money’ within the meaning of subdivision 2 of section 649 of the Code of Civil Procedure, and is a valid levy under a warrant of attachment made on such a policy by serving a certified copy thereof on the proper officer of the insurer, the policy itself not being taken into the sheriff’s actual custody?”

The court answered the first branch of the question in the negative, and the second in the affirmative. The effect of the decision, therefore, was that an insurance policy is not property capable of manual delivery, but the debt which it represents is the res, or property right. The same principal was recognized in Kratzenstein v. Lehman, 19 App. Div. 228 , 46 N. Y. Supp. 71 .

In these cases in construing subdivision 2 of section 649 there is no suggestion that an insurance policy is personal property capable of manual delivery, unless it comes within the definition of an instrument for the payment of money. It therefore must be a mere evidence of the obligation instead of the debt or demand itself. In N. Y. Life Ins. Co. v. Universal Life Ins. Co. et al., 88 N. Y. 424 , in construing section 1778 of the Code of Civil Procedure, it was held that a policy of life insurance is not “evidence of debt for the absolute payment of money upon demand, or at a particular time” within the meaning of that section. A foreign insurance corporation retains the domicile of its origin, however extensive its business may be, and although it may have other jurisdictions for certain purposes. The enlargement of the business of insurance has made it necessary that each state safeguard its policy holders by requiring, among other things, that the foreign corporation shall be amenable to the service of process within the state, but that does not change the situs of the corporation. In Douglass v. P. Ins. Co., 138 N. Y. 209 , 33 N. E. 938 , 20 L. R. A. 118 , 34 Am. St. Rep. 448 , an insurance corporation issued a fire insurance policy to a resident of Eranklin county in this state upon property in that-county, which was destroyed by fire, the loss exceeding the amount of the insurance. The insurance company was doing business in the state of Massachusetts with an agent upon whom process might be served. An action was commenced in that state by a creditor of the insured against him and the insurance corporation, and a levy was claimed to have been made upon the debt evidenced by the policy of insurance pursuant to the warrant of attachment. The insured commenced an action in this state on the policy and the insurance company answered, pleading the Massachusetts attachment action, and alleged

“It has been held that by such act the corporation does not change its domicile of origin or its residence. It becomes bound by judgments rendered upon service on the designated agent, because it has consented so to be bound, but it remains as before a resident of the state where it is incorporated.”

Eurther, in commenting upon the question of jurisdiction:

“We think the rule is that a domestic corporation at all times has its exclusive residence and domicile in the jurisdiction of origin, and that it cannot be garnisheed in another jurisdiction for debts owing by it to home creditors, so as to make the attachment effectual against its creditor in the absence of jurisdiction acquired over the person of such creditor. * * * This court has disclaimed jurisdiction in the courts of this state to attach debts owing by a foreign corporation, or interests in the stock of such corporations belonging to nonresidents by notice or process served ou the agents of such corporations in this state.”

In Plimpton et al. v. Bigelow, 93 N. Y. 592 , shares of stock owned by nonresidents were attached in this state in which the corporation had an office, with the president and officers carrying on the corporate business, and the court in considering whether the shares of the nonresidents could be levied upon in the attachment proceeding used this language at page 598:

“But we regard the principle to be too firmly settled by repeated adjudications of the federal and state courts to admit of further controversy that a corporation has its domicile and residence alone within the bounds of the sovereignty which created it, and that it is incapable of passing personally beyond that jurisdiction.”

And again at page 602:

“We are therefore of the opinion that the fundamental condition of attachment proceedings, that the res must be within the jurisdiction of the court in order to an effectual seizure, is not answered in respect to shares in a foreign corporation by the presence here of its officers, or by the fact that the corporation has property and is transacting business here.”

■These cases are reviewed at length and affirmed in Nat. Brd. Bank v. Sampson, 179 N. Y. 213 , 71 N. E. 766 , 66 L. R. A. 606 , 103 Am. St. Rep. 851 , and the court says at page 225 of 179 N. Y., page 769 of 71 N. E. ( 66 L. R. A. 606 , 103 Am. St. Rep. 851 ):

“It seems clear that a debt, to be subject to attachment, must have a situs somewhere and can be impounded only in the jurisdiction where such situs exists, which is clearly where either the creditor or debtor resides. The laws relating to attachments do not authorize a proceeding in this state to seize a credit owing to a resident of another state, where neither the creditor nor the debtor is a resident here. Nor, as we have seen, could the state make a debtor a resident by so declaring, when such was not the fact.”

See Von Hesse v. Mackaye, 55 Hun, 365 , 8 N. Y. Supp. 894 , affirmed on opinion below, 121 N. Y. 694 , 24 N. E. 1099 .

All these cases recognize that the situs of the debt is ordinarily that of the creditor, except that in attachment proceedings it may be at the domicile of the debtor. As already stated, the residence of noné of the

The only importance of the present action is to determine the rights of the parties to the money due according to the terms of the policy. The money is in New Jersey, and that is the “specific personal property” which the plaintiffs are after. The controversy is between them and the other claimants. Jurisdiction of the insurance company is readily obtainable, but not of these nonresident claimants. Actions have frequently been maintained against life insurance companies, even where they might be subject to' other actions, and consequently expense and embarrassment be caused to them. Sulz v. M. R. F. L. Ass’n, 145 N. Y. 563 , 40 N. E. 242 , 28 L. R. A. 379 ; New Eng. Ins. Co. v. Woodworth, 111 U. S. 138 , 4 Sup. Ct. 364 , 28 L. Ed. 379 ; Equitable Life Ins. Co. v. Brown, 187 U. S. 308 , 23 Sup. Ct. 123 , 47 L. Ed. 190 . Those, however, were each an action by an administrator to recover on the policy, and other rival claimants were not made parties. The controversy in each case was solely with the insurance company. The plaintiffs here are endeavoring to exclude parties and asserting that they must be within the jurisdiction of the court before a final judgment can be awarded. The only way a nonresident can be made a defendant against his will is where he has property within the dominion of the state.

In the prevailing opinion the recent cases of Harris v. Balk, 198 U. S. 215 , 25 Sup. Ct. 625 , 49 L. Ed. 1023 , and Louisville & Nashville R. R. Co. v. Deer, 200 U. S. 176 , 26 Sup. Ct. 207 , 50 L. Ed. 426 ,

“Any kind of property or credits belonging to the defendant, in the plaintiff's own hands, or in the hands of any.one else, may be attached; and credits may be attached which shall not then be due.”

The court, in commenting upon this in Harris v. Balk, 198 U. S. 215 , 25 Sup. Ct. 625 , 49 L. Ed. 1023 , say at page 224 of 198 U. S., page 627 of 25 Sup. Ct. [ 49 L. Ed. 1023 ]:

“Where money or credits are attached, the inchoate lien attaches to the fund or credits when the áttachment is laid in the hands of the garnishee,, and the judgment condemning the amount in his hands becomes a personal judgment against him. Buschman v. Hanna, 72 Md. 1 , 5, 6, 18 Atl. 962 . Section 35 of the same Maryland Code provides, also, that this judgment of condemnation against the garnishee, or payment by him of such judgment, is pleadable in bar to an action brought against him by the defendant in the attachment suit for or concerning the property or credits so condemned.”

The foundation of the decision is therefore that by the Maryland statute jurisdiction was acquired of the debt due from Harris to Balk. By the statute itself the res followed the debtor. For the purpose of showing the paramount necessity of the local court possessing power to garnish the debt, this significant language is used at page 222:

“Attachment is the creature of the local law; that is, unless there is a law of the state providing for and permitting the attachment, it cannot be levied, there. If there be a law of the state providing for the attachment of the debt, then, if the garnishee be found in that state, and process be personally served upon him therein, we think the court thereby acquires jurisdiction, over him, and can garnish the debt due from him to the debtor of the plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that state.”

If by subdivision 5, § 438, of the Code of Civil Procedure, which is the authority for the present order, specific personal property had been defined and a policy of life insurance included in the enumeration, jurisdiction would have been acquired and Harris v. Balk would have been germane. A credit is not subject to seizure by attachment m

“The laws relating to attachments do not authorize a proceeding in this state to seize a credit owing to a resident of another state, where neither the creditor nor the debtor is a resident here.”

The opinion in Louisville & Nashville R. R. Co., supra, simply follows the decision in the Harris Case, although the court is particular to state that the attachment proceedings strictly conformed to the state statute.

It is suggested, also, in the prevailing opinion, that the record does not disclose that substituted service of the summons has been made upon the nonresident defendants in pursuance to the order. The motion to set aside the order was made on the papers upon which the order was granted. It was conceded on the argument in this court that service had been made in compliance with the order, and that the nonresident defendants were in default, and the counsel further stated that they desired a decision on the main proposition as an appeal from the order was the least expensive and most expeditious mode of determining the question; and no claim is made in the brief of the respondent’s counsel that the nonresident defendants are not in default. The appellant is not responsible for the presence of the nonresident defendants. The plaintiff is asserting a lien upon their property, and their presence is essential to the determination of the respective rights of the parties, and the plaintiff recognized this fact by obtaining the order for publication. The defendant owes the amount claimed in the complaint and is willing to pay, but does not wish to pay the same obligation twice. It assuredly does not follow that the plaintiff would be remediless if the present action is not maintainable. The situs of the debt is in New Jersey, and all the rights of the parties may be determined within that jurisdiction.

The order should be reversed.

ROBSON, J., concurs.