Wyman v. Kimberly-Clark Co. , 93 Wis. 554 ( 1896 )

PiNNey, J.

1. The question to be determined is whether the plaintiff is barred or precluded from maintaining his action by reason of the true effect and meaning of ch. 293, Laws of 1893, which provides that: “All mutual fire insur-anee companies, incorporated outside of the state of Wisconsin, that have been declared to be insolvent, and where a receiver has been appointed, shall, within six months after the passage and publication of this act [May 3, 1893], proceed to collect all claims due from policy holders within this state for premiums or assessments. The insurance commissioner is hereby authorized to direct'such inquiries and interrogatories to any receiver so appointed, as he may deem appropriate, and it is hereby made the duty of all such receivers to answer such inquiries under oath; and no action shall be maintained to enforce any such claims so due, unless such action shall be commenced within six months after the passage and publication of this act, and no such action shall be maintained at any time by such receiver,who neglects or refuses, for the period of thirty days, to answer truthfully all such inquiries so directed to him by said insurance commissioner.” The title of the act recites that it is “ to require mutual fire insurance companies, incorporated outside of the state of "Wisconsin and doing business within the state, that have been declared insolvent, to collect all claims due from policy holders within a time specified, and for other purposes.” Each of the premium notes contains a promise of the defendant to pay the Minneapolis Mutual Eire Insurance Company the sum for which it was given, “ by instalments, at such times as the directors of the company may order and assess, for the losses and expenses of said company, pursuant to its charter and by-laws; ” and it is claimed on behalf of the plaintiff that the liability of the defendant was, at most, but a contingent one, and there was nothing due upon either of the premium notes until the assessment of February 3, 1894, had been made, and therefore there was nothing due on either of them when the act in question was passed, and that the act had no application to claims on premium notes for assessments made and notified after its passage and publication.

We cannot assent to this view. The act was founded on broad and general considerations relating to the enforcement of “ all claims due from policy holders within this state for premiums or assessments,” where the insurance company had been declared insolvent, and where a receiver had been appointed; and it was designed to restrict the right of any such company, or its receiver or representative, to resort to and use the process of the courts of this state for the collection of such claims to six months after the passage and publication of the act. The phrase, “all claims due,” which occurs in the act and in its title, is used in the sense of all claims existing or owing, and not in the more restricted sense of claims matured so as to have become the proper subject of an action. It was not intended to leave it optional to make or delay an assessment, or to give notice of one already made, or not, as the receiver or representative of the corporation might choose, and thus, at will, extend the period prescribed by the statute. The act required the claimant, within six months, to proceed to collect all claims due, i. e. all claims owing, and to make and notify the assessments and bring the action within that period.

The argument turns upon the meaning to be given to the phrase “all claims due,” as used in the act. The word “due” signifies, in its larger and general sense, that which is owed; that which one contracts to pay, do, or perform to another; that which is owing. Webst. Diet. “Due;” Black, Law Diet.; Anderson, Law Diet. In its larger sense, it covers liabilities matured and unmatured (People v. Vail, 6 Abb. N. C. 210), and may import indebtedness without reference to the day of payment or that that day has passed, or be used, not in the sense of payable, but as importing an existing obligation (Scudder v. Coryell, 10 N. J. Law, 345; Sand Blast F. S. Co. v. Parsons, 54 Conn. 313; Fowler v. Hoffman, 31 Mich. 219). When used in an attachment statute, it signifies that the day when payment ought to be made has., arrived. Bowen v. Slocum, 17 Wis. 183-184. Much depends upon the context and evident purpose intended. U. S. v. State Bank of N. C. 6 Pet. 36. As used in this statute, and as applied to premium notes, we think the phrase “claims due” imports existing obligations or indebtedness, without reference to whether an assessment has been made or notified, or not. The evident policy and purpose of the act forbid that its effect should be restricted to claims already payable, as distinguished from claims owing which the claimant can presently render payable.

2. It is well settled that, by the law of comity between the several states, a corporation created by one sovereignty is permitted to make contracts in another and to sue in its courts, but upon such terms and conditions as such other sovereignty shall prescribe; and it may be excluded from suing in its courts when it is considered contrary to its policy or prejudicial to its interests. Bank of Augusta v. Earle, 13 Pet. 520, 588, 589; Paul v. Virginia, 8 Wall. 180, 181; State ex rel. Drake v. Doyle, 40 Wis. 197, 198; State v. U. S. Mut. Acc. Asso. 67 Wis. 629, 630; Philadelphia Fire Asso. v. New York, 119 U. S. 117, 118; State ex rel. Covenant Mut. Ben. Asso. v. Root, 83 Wis. 680; Larson v. Aultman & Taylor Co. 86 Wis. 284. The whole matter is one of public policy and resting in the discretion of the state, and it may impose such terms and conditions as it sees fit. The samo principle and right of exclusion from the privilege of suing in the courts of the state is applicable in the case of a receiver or other representative of the corporation. Indeed, the right of any receiver appointed by the court of another state to sue as such in our courts rests upon the principles of interstate comity, and may be allowed only upon such conditions, or prohibited entirely, as the legislative authority of the state may deem most conducive to the interests and welfare of the people of the state. Gilman v. Ketcham, 84 Wis. 60; Parker v. Stoughton Mill Co. 91 Wis. 174; Swing v. White River L. Co. 91 Wis. 517. For these reasons, it is not necessary to consider whether the act in question would be valid or operative technically as a statute of limitations or not; for we think it closes the courts of this state against claims such as the plaintiff has brought before the court, ■and that the defendant’s demurrer was rightly sustained.

By the Court. — The order of the superior court is affirmed.