Yates v. Continental Insurance

Mr. Justice Magruder

delivered the opinion of the court:

The questions in this case are substantially the same as the questions already discussed and disposed of in the case of Yates v. People ex rel. (ante, p. 316). The exceptions, filed to the amended answer as amended in the present case, were in the nature of a special demurrer to the answer. (Story v. Livingstone, 13 Pet. 359; Stone v. Moore, 26 Ill. 165). By sustaining the exceptions to the answer, the court held that the defense set up in the answer was insufficient. That defense was, that the charter of appellee had become extinct for the reason stated in Yates v. People ex rel. supra. In the brief filed in this case for appellee, it is said:' “The only question, which arises in this case, is whether'under the act of the legislature of the State of Illinois entitled ‘An act in regard to the dissolution of insurance companies, ’ approved July 1, 1874, the charter of the appellee is extinct.” As this question is decided in the other case, it is not necessary to re-discuss it here. We have held that, where exceptions to an answer are allowed, and the remainder of the answer presents no material issue, and the defendant makes no further answer, it is proper to decree that the petition- or bill of the complainant be taken as confessed for want of an answer. (Work v. Hall, 79 Ill. 196; Craig v. People, 47 id. 487; Bauerle v. Long, 165 id. 340). The trial court having, allowed the exceptions to the answer as having been well taken, the decree pro confesso upon the original bill followed as a matter of course, "the appellant having failed to file a further answer, and having stood by the answer, to which the exceptions were sustained. But, for the reasons stated in the other case, we are of the opinion that' the defense set up in the answer was a good one, and that the court erred in sustaining the exceptions to the answer, and in entering a decree in accordance with the prayer of the original bill.

We are also of the opinion that the court erred in dismissing the amended cross-bill as amended, for want of equity. Section 3 of “An act to provide for the establishment of an insurance department and the appointment of an insurance superintendent,” approved June 20, 1893, in force July 1, 1893, provides as follows: “The insurance superintendent shall possess and have all the powers, and he may perform all the duties in regard to the business of insurance in this State, which are now attached by law to the office of Auditor of Public Accounts, and the Attorney General. And he shall exercise the same control over the insurance companies, their officers and' agents in this State, * * * and may institute and prosecute in his name all suits and do all . things heretofore required to be done by the laws of this State by the Auditor of Public Accounts, and the Attorney General.” Under the act of July 1,1874, entitled “An act in regard to the dissolution of insurance companies,” in force July 1, 1874, the State Auditor had the right to file a bill asking for an injunction to restrain the company from further prosecuting its business; and, therefore, the present appellant, as insurance superintendent, had the same right which was by the last named act vested in the State Auditor. We see no reason why the insurance superintendent could not file his cross-bill in the present suit, asking for an injunction to restrain the company from further prosecuting its business. A receiver also should have been appointed under the cross-bill, as provided in section 5 of said act of July 1, 1874.

Accordingly, the decree of the court below sustaining the exceptions to the amended answer as amended; and granting the relief asked by the original bill, and dismissing the cross-bill for want of equity, is reversed, and the cause is remanded to the superior court of Cook county with directions to proceed in accordance with the views herein expressed.

lleVersed and remanded.