Philp v. Covenant Mutual Benefit Ass'n of Illinois ( 1883 )

Day, Ch. J.

One- of the grounds of the motion to set aside the default is that the defendant had not been served as required by law, and the court had no power or authority to entertain jurisdiction and to render judgment. Section 1165 of the Code, with reference to life insurance companies, provides: “Such company shall also appoint an attorney or agent in each county in this state, in which the company has an agency, on whom process of law can be served, and such company shall file with the auditor of state a certified copy of the charter or articles of incorporation of said company, and also a certified copy of the certificate of appointment of such agent or agents, which appointment shall continue till another attorney or agent be substituted.”

Section 2612 of the Code provides: “When the action is against a municipal corporation, service may be made on the mayor or clerk, and if against any other corporation, on any trustee or officer thereof, or on any agent employed in the general management of its business, or on any of the last known or acting officers of said corporation.”

Section 2613 of the Code provides: “ When a corporation, company or individual has, for the transaction of any business, an office or agency in any county other than that in which the principal resides, service may be made on any agent or clerk employed in such office or agency, in all actions growing out of or connected with the business of that office or agency.”

In support of tlie motion, the defendant filed the affidavit of E. F. Phelps, secretary and general manager of the defendant, stating that the defendant is a corporation organized under the laws of the state of Illinois, with its general office at Galesburg, Illinois, and-that O. E. Ilambleton, upon whom, as agent of the defendant, the notice of this suit was served,was not at, nor for a long time prior to, the time of service, a trustee or officer, nor an agent employed in the general management of the defendant’s business, nor did defendant at such time have an office or agency in Lee county, Iowa, nor was said Ilambleton ever appointed agent in this state, under section 1165 of the Code. The further evidence submitted upon the motion showed that, at the time service was made upon Ilambleton, he was in Keokuk, acting as attorney for the defendant in an action before a justice of the peace; that liis home was in Galesburg, Illinois, and he had no headquarters in Iowa; that he was assistant manager of agencies, and acted for the company whenever sent out by them to investigate losses, to look up testimony in law suits in which the company was engaged, and at times to look after local agents, investigate the facts, and report to the general manager, but that he did not take risks or issue policies, and that the person performing such duties as Harnbleton performed did not act in states where there -were agents, and that Funk, of Des Moines, was the agent for defendant in Iowa. Some evidence was introduced of declarations made by Ilambleton, but this evidence we regard as incompetent.

Hambleton’s agency cannot be proved by his own declarations. So far as is shown by competent evidence, Ilamble-ton was not authorized to do any act for the defendant in Iowa, except to appear as attorney, in behalf of the defendant, in the justice’s suit before referred to. As Ilambleton was not employed in any office or agency for the defendant in this state, and was not appointed agent of the defendant under section 1165 of the Code, it follows that service upon him can be sustained only under section 2612 of the Code, upon tlie ground that be was employed in the general management of the business of the defendant. An agent who had no authority to act for the defendant in .this state, and whose duties outside of the state were limited to the investigating of facts, and the reporting, of them to the general manager, cannot, it seems to us, be an agent employed in the gen.eral management of the defendant’s .business, as contemplated in section 2612 of the Code.

The appellee relies upon The Farmers’ Insurance Co. v. Highsmith, 44 Iowa, 330; and the Centennial Mutual Life Association v. Walker, 50 Id., 78. In the former of the above cases, service was made upon an agent of the defendant transacting business for it in the county where suit was brought, and who made the contract of insurance which was involved in the action in which the service was obtained. The decision is based upon the provisions of section 4, chapter 95, of the laws of 1872. In the latter of the above cases, service was made upon the general manager of agencies for the state of Iowa. Neither of the cases supports the service made in this case. In our opinion the service upon Ilam-bleton did not confer jurisdiction, and the court should have set aside the default and allowed the defendant to make detense.

Reversed.