Schofield v. Lafferty , 17 Pa. Super. 8 ( 1901 )

Opinion by William W. Pouter, J.,

The appellant claims that the judgment should be reversed because of the insufficiency of the statement of claim. This court held in Stockley v. McClurg, 14 Pa. Superior Ct.629, that the plaintiff’s statement in a suit by a receiver for an assessment made pursuant to the decree of the court appointing the receiver, should include a full copy of the record of the proceedings leading up to the order for the assessment. The plaintiff’s statement in this case does not include such a copy of the record. But in the case cited, the objection was directly made in the affidavit of defense filed. It was passed upon by the court below. In this case the objection was not raised by the affidavit nor by a demurrer. The attention of the court below does not seem to have been called to the defect. No injury seems to have befallen the defendant by reason of the failure to append the copy of the record, since in his affidavit in setting forth other matters of defense, he exhibits knowledge of the proceedings which led up to the decree for the appointment of the receiver and the order for the assessment. The main purpose of requiring a full record to be appended to the statement of claim is that the defendant may be informed of the proceedings which culminated in a decree upon which the liability for the assessment is founded. Furthermore, had the point been raised in the court below, the plaintiff would have been given opportunity to amend, since the objection is not in bar of the action. In view of these circumstances, we distinguish this case from the case above cited.

The appellant contends that the act of 1885 contemplates action by the officers of the company to assess and collect from the policy holders before the appointment of a receiver by the court. The act provides, that it shall be the duty of the attorney general to apply to the court of common pleas of the county in which the seat of government is located, for an order to show cause why the company’s business should not he closed, in cases where he has been notified of the return of nulla hona upon an execution against the company; and that “ upon the hearing of such rule or order, the court .... shall direct the officers of the said company to assess and collect from the policy holders thereof, a sum sufficient to satisfy said judgment and execution, and all other claims against said company, or make any other order or orders in the premises as may appear to such court .... just and necessary, and in case it shall finally appear to said court .... that the company aforesaid cannot collect from its members sufficient funds to satisfy the claims against it, the said company shall be adjudged insolvent and the court .... shall decree its dissolution and appoint a receiver,” etc.

The statement of claim recites that application was made by the attorney general to the Dauphin county court, “ suggesting the insolvency of said company and praying for the appointment of a receiver; ” and that the said court subsequently appointed a receiver and directed him to make an assessment for the purpose of paying the losses. It will he seen that the point raised by the appellant involves a collateral attack upon the decree of the court of Dauphin county. This may not be permitted : Eichman v. Hersker, 170 Pa. 402 ; Capital City Mut. Fire Ins. Co. v. Boggs, 5 Pa. Superior Ct. 394; Stockley v. Hartley, 12 Pa. Superior Ct. 628. But the appellant asserts that he has raised a jurisdictional question; that want of jurisdiction appearing, the defect may be taken advantage of at any time and in any court, and in support of this proposition cites Wall v. Wall, 23 W. N. C. 238. We may well concede the doctrine of the case cited, and that if the record of the Dauphin county court on its face disclosed a want of jurisdiction, the appellant might raise the question in this proceeding. We are of opinion, however, that on the face of the record, as it now stands, no such jurisdictional defect appears. The act quoted shows that on the hearing of a rule or order made at the suggestion of the attorney general, the court may direct the officers to proceed and assess, or may make any order in the premises as may appear to the court just and necessary. The statement of claim shows that a suggestion of insolvency was made by the attorney general, and that on that suggestion the court made an order for the appointment of a receiver and followed it by the order for an assessment. This was doubtless done under the alternative and discretionary power given to the court by the very words of the act, — a power which without the act, would, there is little doubt, be exercisable by a chancellor: Citizens’, etc., Savings Bank & Trust Co. v. Gillespie, 115 Pa. 564. We must assume that the order made was just and necessary, and that the proceedings as to form were in accordance with law.

The appellant urges also that he had the right to set off, as against the assessment sued for, a loss suffered under the policy held by Mm. He cites no authority in support of the proposition, which, we are of opinion, is determined against him by the case of Hillier v. Allegheny Mut. Ins. Co., 8 Pa. 470, in which the discussion of the question is closed by Chief Justice Gibson, thus : “ The plain and practicable plan of settling the affairs of an insolvent company of mutual insurers, is to liquidate its means and its responsibilities separately.”

The judgment of the court below is affirmed.