Aetna Insurance v. O'Malley

^* NOTE: Opinion filed at September Term, 1937, April 21, 1938; motion for rehearing filed; motion overruled at May Term, 1938, June 17, 1938. These appeals involve the validity of allowances of fees to Messrs. L.H. Cook, H.P. Lauf and Gilbert Lamb, made by the Circuit Court of Cole County out of a certain insurance fund in the registry of said court. The allowances to Cook and Lauf were for services as commissioners and custodians of said fund. The allowance to Mr. Lamb was for services as attorney for said commissioners and custodians.

The pertinent facts are, in substance, as follows:

On October 9, 1922, the Superintendent of Insurance ordered a ten per cent reduction in insurance rates, effective November 15, 1922. On November 10, 1922, the insurance companies filed in the circuit court an action for review of said reduction order. On said day the circuit court, pursuant to a stipulation of the parties, entered an order authorizing the companies, pending the review to collect the rates in force prior to said order, and to refund the excess collected to the policyholders in event the order reducing rates was finally sustained. On December 22, 1924, the court entered judgment setting aside the ten per cent reduction order, and the superintendent appealed. On June 23, 1926, this court reversed the judgment. Our mandate was lodged in the circuit court directing that defendant (superintendent) "be restored to all things which he lost by reason of said erroneous judgment." [Aetna Ins. Co. v. Hyde, 315 Mo. 113, 285 S.W. 651.] After the reduction order was sustained the companies made certain refunds of excess premiums collected to the policyholders. Thereafter, the superintendent, contending that the companies had not made complete refunds, filed in the circuit court a motion to compel the insurance companies to pay into court, with interest, the excess premiums still in their possession. The insurance companies filed answers in which they challenged, for numerous alleged reasons, the jurisdiction of the circuit court to entertain the motion. They also denied having excess premiums and alleged compliance with a stipulation of the parties and order of the court that, pending the review of the reduction order, the rate in force prior to said order should be collected by the companies but refunded by them to the policyholders, if said order was sustained on final judgment. Thus the question of restitution was at issue on the pleadings.

Thereafter, orders and judgments were entered in the circuit court as follows:

Upon hearing of the superintendent's motion for restitution, the court on May 26, 1933, rendered an interlocutory judgment for an accounting and restitution by the companies. The circuit court found that the companies had collected excess premiums in a certain total sum for which, with interest, judgment was entered against them. The judgment provided for the appointment of masters to hear the companies on their claim of refunds already made to policyholders, for which they would receive credit. It also provided that when the companies fully complied with the judgment and other orders of the court, they would be discharged from all liability for restitution.

On May 27, 1933, the court appointed four masters, including Messrs. Lauf and Cook, to conduct the hearings and report to the court. It ordered the companies to deposit a certain sum for payment of costs.

In prohibition in this court (State ex rel. Abeille Ins. Co. v. Sevier, 335 Mo. 269, 73 S.W.2d 361), the companies contended that the circuit court was without jurisdiction to entertain the motion for restitution. We overruled the contention but ruled that said court was without authority to require the deposit for payment of costs, and that it could appoint not to exceed three referees. [Secs. 975, 976, 977, R.S. 1929.]

In due course our mandate in the prohibition case was lodged in the circuit court. Thereafter, and on December 14, 1934, said court ordered each company to file with the clerk, not later than February 15, 1935, a certified account of the amount of excess premiums collected and the amount of said premiums already refunded to policyholders. The order also directed each company to deliver to the clerk a check payable to custodians, hereinafter named, for the amount of unrefunded excess premiums.

It appointed Messrs. L.H. Cook and H.P. Lauf commissioners and custodians to receive the checks and examine said accounts. It authorized the Superintendent of Insurance to file exceptions to said accounts, ordered hearings before the commissioners and custodians on said exceptions and directed them to report to the court their findings with reference to the same. It ordered that if an additional sum was found due from a company, said sum should be paid to the clerk, to be delivered to the custodians. It further ordered that upon final settlement by a company, the custodians should report to the court that said company had complied with its orders and was entitled to be discharged.

On December 14, 1934, the court directed the bank to carry the account in the name of Messrs. Lauf and Cook and permit no withdrawals except on checks signed by the judge and the custodians. It also directed Messrs. Lauf and Cook to keep books with reference to the fund.

On January 11, 1935, the court authorized Messrs. Lauf and Cook to conduct hearings, pass on claims filed against the fund and report their findings to the court.

On February 11, 1935, the court ordered Messrs. Lauf and Cook to expend all money and consume all reasonable time necessary to locate policyholders entitled to refunds and pay the same. It also directed them to investigate all the reports filed by the companies. It authorized them to sue and be sued, to conduct hearings on reasonable notice to the companies, and otherwise make investigations. It empowered them to subpoena witnesses, cause the production of evidence and directed them to file in court a certified copy of said evidence with their findings. It also directed them to file in court reports with reference to money refunded by the companies and money paid to policyholders. It authorized them to incur indebtedness for furniture, desks, equipment, material, supplies and office rent, and to pay therefor from the total refund moneys paid by the companies and report to the court with reference to said expense. In said order the court announced that it would appoint all counsel, employees and other persons necessary to assist Messrs. Lauf and Cook in the discharge of their duties and fix the compensation of said employees.

On February 16, 1935, the court appointed Mr. Gilbert Lamb attorney for "L.H. Cook, Esquire, and H.P. Lauf, Esquire."

On February 16, 1935, the court fixed the compensation of said attorney at $420 a month.

On May 24, 1935, the court increased the salary of said attorney to $600 a month.

On December 2, 1935, Messrs. Lauf and Cook filed a report with reference to the amount of restitution due from each of the companies.

On December 7, 1935, the court entered final judgment in restitution against the companies for about $2,729,000.

On December 7, 1934, the court taxed certain costs against the companies. On January 16, 1936, Messrs. Lauf and Cook filed a final report of the accounting of the insurance companies.

On February 11, 1936, the report of Messrs. Lauf and Cook was filed, which showed that $4202.58 had been disbursed to the policyholders to date, and showed "accumulated operating expenses" in the sum of $50,220.24.

On February 18, 1936, the court discharged the companies and sureties "of all further liability of every kind and character arising from the restitution proceeding, and affirming and approving the accounts of Messrs. Cook, Lauf and Lamb." Thereupon, it ordered Messrs. Lauf and Cook to pay from the restitution fund excess premiums to policyholders entitled to the same.

On March 3, 1936, the court allowed Messrs. Lauf and Cook each additional compensation in the sum of $40,000, and allowed Mr. Lamb additional compensation in the sum of $20,000. It also allowed Messrs. Lauf and Cook each the sum of $500 per month, beginning January 1, 1936, and Mr. Lamb $500 per month, beginning March 1, 1936.

[1] I. The Superintendent of Insurance admits that the circuit court had jurisdiction to entertain the motion for restitution. We so ruled in State ex rel. Abeille Ins. Co. v. Sevier,335 Mo. 269, 73 S.W.2d 361. He also admits that said court had jurisdiction to appoint referees for the accounting on the part of the companies. However, he contends that the trial court was without jurisdiction to distribute the insurance fund to the policyholders. In support of said contention he cites Section 5874, Revised Statutes 1929, the pertinent part of which follows:

"During the pendency of such action or review, the orders and directions of the Superintendent of Insurance, as to reduction of rates, shall be suspended, but all such insurance companiesshall, during the pendency of such action or review, deposit with the Superintendent of Insurance on all policies issued or renewed after the date of such order or direction, and until the final determination of such action, an amount equal to the difference between the rates fixed by the Superintendent in his order and those in effect prior thereto, such funds to be held by the Superintendent of Insurance to await the result of such review, and in the event the orders and directions of theSuperintendent be set aside, such funds shall be returned to thecompanies pro rata, and in the event his orders and directionsshall be sustained, then such funds shall be turned over to thepolicyholders pro rata." (Italics ours.)

This statute designates the Superintendent of Insurance as custodian of excess premiums collected pending an action to review an order reducing insurance rates, with authority to refund the excess so collected to the policyholders after final judgment in the review action sustaining the reduction order.

Respondents contend that the statute, by its terms, applies only to suits to review an order reducing rates, and since the review suit had gone to final judgment without depositing the excess premiums collected with the Superintendent of Insurance, it was too late after final judgment in the review action to complain of errors, if any, in the procedure leading up to that judgment.

This contention overlooks the fact that the statute enjoins two duties upon the Superintendent of Insurance, one to be performed by him before final judgment in the review action, the other after final judgment in that action. Before final judgment it was his duty to receive and hold all excess premiums collected pending the action. After final judgment sustaining the order reducing rates it was then his duty, under the statute, to deliver the excess premiums to the policyholders from whom they had been collected. The fact that the statute had been violated pending the review action by failing to deliver the excess premiums collected to the Superintendent of Insurance, did not authorize the court to further violate the statute after final judgment in the review action, by ordering the fund delivered to custodians of its own choosing for distribution, instead of to the Superintendent of Insurance, the statutory custodian thereof.

Respondents contend, however, that since Section 5874 was not in effect at the time the review action was brought, and since, at that time, there was no other statute making the Superintendent of Insurance custodian of the excess premiums collected pending the review action, the superintendent had a lawful right to and did stipulate and agree with the companies that they might collect the old rate pending the review action, keep the excess collected in their possession until the final outcome of that action, and in event the reduction order was sustained, refund the excess so collected to the policyholders.

[2] It is true that Section 5874 was not in effect when the review action was brought. The review action was brought on November 10, 1922. The effective date of Section 5874 was June 25, 1923. Although Section 5874 was not in effect when the review action was brought, its applicability to that action depends upon whether or not it is a procedural statute. If it deals with procedure only, it was applicable to and should have governed the case from its effective date, June 25, 1923. The rule governing the applicability of procedural statutes under such circumstances is stated by this court in Clark v. Railroad, 219 Mo. 524, 534, 118 S.W. 40, 43, as follows:

"No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a statute deals with procedure only, prima facie it applies to all actions — those which have accrued or are pending, and future actions. What was before a subject of equitable relief may be made triable by jury without affecting vested rights. If, before final decision, a new law as to procedure is enacted and goes into effect, it must from that time govern and regulate the proceedings."

The substantive rights to be determined in the review action was the legality of the order reducing rates, which determination necessarily fixed the ownership of the excess premiums collected pending the review action. If the order reducing rates was sustained the excess belonged to the policyholders from whom it had been collected. If the reduction order was set aside the excess collected belonged to the insurance companies. A statute designating who should hold the excess premiums pending the litigation, and who should deliver such excess to the proper parties after the litigation was over, relates solely to the procedure to be followed for the protection and enforcement of the rights of the successful parties in the litigation, and had nothing whatever to do with the determination of such rights. For the reasons stated, we hold that the provision of Section 5874 designating the Superintendent of Insurance as custodian of the excess premiums collected pending the review action, with authority to refund such excess to the parties entitled thereto under the final judgment in that action, relates to procedure only and should have governed the case from June 25, 1923, its effective date.

[3] Our conclusion that Section 5874 applied to the review action from its effective date, brings us to the question of the effect of the stipulation entered into between the superintendent and the companies prior to the effective date of the statute. This stipulation was before us in Abeille Fire Insurance Co. v. Sevier, 335 Mo. 269, 73 S.W.2d 361. We there held the stipulation as well as the court order approving it was void because contrary to statute. Assuming, for the sake of argument, that the stipulation was valid, it purported to give no one except the companies themselves the right to make refunds to the policyholders in event the order reducing rates was sustained. They forfeited that alleged right by failing and refusing to turn over the fund in question to the policyholders or anyone else. Thereafter the Superintendent of Insurance filed a motion in the circuit court in the review action to compel the companies to pay into court, with interest, the amount of unrefunded excess premiums still in their possession. [4] On final hearing of this motion, the circuit court on December 7, 1935, rendered final judgment in restitution against the companies for approximately $2,729,000 and ordered that said sum be paid to Messrs. Cook and Lauf as custodians of the court. The companies did not appeal. They complied with this judgment by paying the money into the registry of the court, and accepting their final discharge. They are not here contending that they or anyone else have a right to make the refunds in question because of the stipulation. In this situation, the stipulation, whether valid or invalid, has nothing whatever to do with the case. We must, therefore, treat the case as though the stipulation had not been made. Disregarding the stipulation, as we must do, it logically follows that the refunds must be made in accordance with the applicable statutes governing that question.

The refunds could not be made until the court on December 7, 1935, by its final judgment in the restitution action compelled the companies to pay the excess premiums into court. At that time the statute, Section 5874, designating the Superintendent of Insurance as the custodian to make the refunds to policyholders was in force and effect and had been since June 25, 1923. This statute, being procedural only, governed the case from its effective date. [Clark v. Railroad, supra.] It must, therefore, logically follow that the court had no authority to assume jurisdiction of the fund or appoint custodians of its own choosing to make refunds to policyholders, in the face of a positive and unambiguous statute which designates the Superintendent of Insurance as custodian of the fund with directions to make such refunds. Our conclusion is supported by authority. The statute in question was construed by this court in the recent case of State ex inf. McKittrick v. American Colony Insurance Company, 336 Mo. 406, 427, 80 S.W.2d 876, we there said:

"As a matter of fact, the section does not deal with judicial impoundment at all. It says that during the pendency of a review proceeding the orders of the superintendent as to reduction of rates shall be suspended, and that the insurance companies shall deposit with the Superintendent of Insurance on all policies issued or renewed after the date of the reduction order, and until the final determination of the review proceeding, the amount of the reduction, the fund so created to be held by the superintendent awaiting the decision of the controversy. In other words, the section calls for the suspension of a rate reduction order and the collection and impoundment of the disputed portion of the rate always and automatically, wholly independent of the courts. The money is deposited with the superintendent and handled and disbursed by him as the statute specifies without any court order whatever."

Under the plain terms of the statute, as interpreted by this court in the case last above cited, the fund in question should have been handled by the companies and the superintendent, wholly independent of the circuit court and without any court order whatever. That is, it was the statutory duty of the companies to deposit the excess with the superintendent as they collected it. It was the statutory duty of the superintendent to hold such excess until the litigation ended, then turn same over to the parties entitled thereto under the final judgment of the court in the review action. When the companies failed to perform their statutory duty, the circuit court had jurisdiction to compel them to do so by adjudging that they pay the excess premiums still in their possession to the Superintendent of Insurance, or into court for him, but it did not have authority to seize the fund and attempt to administer it through custodians of its own choosing in violation of the statute which provides, in plain terms, that the Superintendent of Insurance shall administer it.

[5] It will not do to say that because the court had jurisdiction of the subject matter of restitution and of the parties, any order made or judgment rendered in that action, if wrong, was merely erroneous, but not void for want of jurisdiction. Although a court has jurisdiction of the subject matter of an action and of the parties, it cannot exceed that jurisdiction. It must have authority to render the particular judgment in the particular case. Speaking to that question in Gray v. Clement, 286 Mo. 100, 109, 227 S.W. 111, we said:

"Where the record of a judgment shows on its face that the court did not have authority to grant the particular relief which it did grant, the judgment is void and subject to collateral attack. There must be jurisdiction of the matter acted upon; the court must have the power ``to render the particular judgment in the particular case' before it can be said to have jurisdiction."

On a second appeal of Gray v. Clement, supra, 296 Mo. 497, 511,246 S.W. 940, we said:

"While it is well settled that a judgment cannot be questioned collaterally for an error committed in the exercise of jurisdiction, the rule is equally well established that a judgment may be attacked in a collateral proceeding for error in assuming jurisdiction. Even where a court has jurisdiction over the parties and the subject-matter, yet if it makes a decree which is not within the powers granted to it by the law of its organization, its decree is void. Thus, a judgment may be collaterally attacked where the court had jurisdiction of the parties and subject-matter of the action, but did not have jurisdiction of the question which the judgment assumed to determine, or power to grant the particular relief which it assumes to afford to the litigants."

For all of the reasons stated, the order of the trial court appointing Messrs. Cook and Lauf as custodians to distribute said fund to the policyholders, being in violation of Section 5874, was in excess of the court's jurisdiction and void. If so, the order of said court appointing Mr. Gilbert Lamb as attorney for said alleged custodians was likewise in excess of the court's jurisdiction and therefore void. Since the appointment of Messrs. Cook and Lauf as custodians, and Mr. Lamb as their attorney was void, it follows that the orders made allowing them compensation as such were likewise void. [St. Louis etc., Railroad Co. v. Wear, 135 Mo. 230, 268, 36 S.W. 357, 358.]

[6] It is contended, however, that the Superintendent of Insurance is estopped to object to the appointment of Messrs. Cook and Lauf to make the refunds in question, (1) because in the motion for restitution he prayed that the amount found to be due the policyholders be paid into the registry of the court, and (2) that he, knowing that Messrs. Cook and Lauf had been appointed as custodian of the funds with authority to deliver same to the policyholders stood by for a period of two years, and, without objection, permitted them to handle the funds as such custodians.

These contentions cannot be sustained for two reasons, (1) the fact that the Superintendent of Insurance asked in his motion for restitution that the amount found to be due the policyholders be paid into the registry of the court, did not amount to consent or agreement that the court might thereafter handle such funds in any manner other than that provided by statute, and (2) since the court did not have jurisdiction to appoint custodians to make refunds to policyholders, such jurisdiction could not be conferred by silence, acquiescence, estoppel or agreement.

[7] Further contention is made that since the restitution proceeding was an equitable action, the court had inherent power, independent of the statute, to appoint commissioners and custodians and counsel for them.

Courts of equity have no more authority to disregard plain provisions of a statute than do courts of law. Equity follows the law. The rule in this regard is well stated in 10 Ruling Case Law, page 382, as follows:

"Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law. They are bound by positive provisions of a statute equally with courts of law. . . . So wherever the rights or the situation of the parties are clearly defined and established by law, whether it be common or statutory, equity has no power to change or unsettle those rights or that situation. . . ."

Since authority to administer the fund was by statute lodged with the Superintendent of Insurance, the circuit court, sitting as a court of equity, had no authority to disregard the plain provisions of the statute and assume administration of the fund. In none of the cases cited by respondents on this point was there a statute which prevented the court from assuming jurisdiction of the disputed question, as there is in this case. For that reason the cases cited are not in point.

[8] The next question is whether or not Messrs. Cook and Lauf are entitled to compensation as referees. We held in Abeille Fire Insurance Co. v. Sevier, 335 Mo. 269, 73 S.W.2d 361, that the restitution proceeding was the character of case which authorized the court to direct a reference. The order of the court appointing Messrs. Cook and Lauf, by whatever name they were called, constituted them referees with authority to hold hearings for the purpose of determining the amount due from the companies, and to report their findings to the court. Such was the extent of their authority. The orders of the court which attempted to clothe them with authority to administer the fund after it was paid into court were void for reasons heretofore stated. They were entitled to compensation for services performed as referees, taxable as costs of litigation.

There is a distinction between cost of administration and costs of litigation. Litigation costs are taxed against the losing party. In Pullis v. Pullis Bros. Iron Co., 90 Mo. App. 244, 250, that court said:

"A distinction is drawn between costs of administration and of litigation, by which the latter must be taxed against the losing party, but the former need not in all circumstances."

In Schawaker v. McLaughlin, 139 Mo. 333, 342, 40 S.W. 935, this court said:

"It is next contended that the allowance by the circuit court of compensation to the referee is not properly taxable as costs. The statute declares that referees, in the absence of any special agreement, ``shall receive such compensation for their services as the court in which the case is pending may allow, not exceeding ten dollars per day.' [R.S. 1889, sec. 2158.]

"This language does not literally say that the compensation of referees shall be taxed as costs. But the court (authorized to make the allowance) is not provided by law with any official funds of its own for such expenses. It is hence but a fair and natural inference that the law intends the allowance to be taxed as costs. [Trail v. Somerville (1886), 22 Mo. App. 308.]"

See, also, Van Trump v. Sameman, 193 Mo. App. 617, 618, 187 S.W. 124.

Keeping in mind the difference between costs of litigation and costs of administration, it is clear that whatever compensation Messrs. Cook and Lauf were entitled to for their services as referees was costs of litigation and not costs of administration. Such compensation being costs of litigation, it should have been taxed as costs against the losing party at the judgment term. The rule governing the taxation of litigation costs is stated by this court as follows:

"Where the costs are definite and fixed by statute, the clerk in the first instance is by law required to tax costs of the case, which of course is purely a ministerial duty, and, when the court is requested to review the clerk's action in that regard, it is exercising a similar duty, simply correcting errors made by the clerk in trying to obey the statutes; but not so in regard to the taxation of costs, which requires judicial investigation and determination. In such a case, the clerk has no authority whatever to act, except as ordered by the court; in that case the court alone can order the costs taxed or retaxed, which must be done upon judicial investigation and determination, and must be done during the term of the court at which the final judgment in the cause is rendered, for it is elementary that with the lapse of the term at which the final judgment is rendered the jurisdiction of the court over the cause ceases." [Burton v. Railroad Co., 275 Mo. 185, 195, 204 S.W. 501, 504; State ex rel. Williams v. Daues, 334 Mo. 91, 66 S.W.2d 137; Niedringhaus v. Wm. Niedringhaus Investment Co., 54 S.W.2d 79.]

No order was made at the judgment term or at any other term fixing the compensation to which Messrs. Cook and Lauf were entitled for their services as referees, and taxing same as costs against the losing parties. Concerning the claim of Mr. Lamb for compensation as attorney for Messrs. Cook and Lauf, we know of no law, and none has been cited, which would authorize the court to appoint an attorney to advise and assist Messrs. Cook and Lauf in the performance of their duties as mere referees, which was their only lawful capacity. But if the court had authority to appoint such an attorney, his compensation for assisting referees in the performance of their duties as such, would be costs of litigation which should have been taxed as costs against the losing party at the judgment term, and that was not done.

[9] We have been asked to dismiss the appeal herein. The first ground of the motion to dismiss is that the Superintendent of Insurance has no appealable interest.

Our judgment is the superintendent had an appealable interest. Section 5874 of the Insurance Code enjoined upon him the duty of preserving excess premiums collected pending the action to review the reduction order, and disbursing such excess to the policyholders after the reduction order was sustained. When the circuit court by its judgment prevented the superintendent from performing his statutory duty, it was not only his right but his duty to test the efficacy of that judgment on appeal. Speaking of the Insurance Code in State ex rel. Missouri State Life Insurance Co. v. Hall, Judge et al., 330 Mo. 1107, 52 S.W.2d 174, 177, this court said:

"The original Code and amendments thereto indicate an intention to regulate the business from beginning to end, thereby protecting individual and public interests. The enactment of this comprehensive Code made the State a real party in interest. The Superintendent of Insurance is the administrative officer in charge of that interest, and courts are without authority to interfere with his administration of the Code."

[10] The second and third grounds of the motion ask that the appeals be dismissed because of alleged insufficiency of appellant's abstract of record and statement of facts.

Cause No. 35231 is an appeal from the order of March 3, 1936, allowing to Messrs. Cook, Lauf and Lamb the fees here in controversy. We refer to the facts heretofore stated and discussed in this opinion without restating them. They all appear in appellant's abstract of record and statement of facts. We regard them as sufficient to a proper understanding of the case and, therefore, decline to dismiss the appeal.

Cause No. 35233 is an appeal from the order of February 18, 1936, finding that the companies had fully complied with the final judgment in restitution and adjudging that they and their sureties be finally discharged. It is not contended that the companies did not fully comply with the judgment as rendered. The contention appears to be that whatever compensation Messrs. Cook, Lauf and Lamb were entitled to should have been assessed against the companies as litigation costs, and the court erred in discharging the companies and their sureties without first assessing such costs against them.

The court had jurisdiction to render final judgment against the companies in the restitution proceeding, and to assess all litigation costs against them. The failure to tax the costs in question against the losing parties at the judgment term was an error in the exercise of jurisdiction which could have been corrected by the trial court at the judgment term, or thereafter by direction of this court on appeal, if an appeal had been duly and timely taken. But since the trial court did not correct the error at the judgment term, and since no appeal was taken, the judgment taxing costs became final with the lapse of the judgment term, and divested the court of jurisdiction to thereafter correct the alleged error. After the judgment became final the companies complied therewith by paying the amount thereof in full into the registry of the court. Whereupon the court entered the order of February 18, 1936, finding that the judgment was paid in full and adjudging that the companies and their sureties be discharged from further liability. The payment of the judgment, and not the order thereafter entered by the court, was the thing that discharged the companies from further liability. The order was merely record evidence of such payment and discharge. On the record as presented appellant was aggrieved, if at all, by the erroneous taxation of costs at the judgment term, from which no appeal was taken, and not by the order evidencing payment of the judgment and discharge of the companies, from which no appeal could be taken. It results that the appeal in case No. 35233 should be and is hereby dismissed.

Cause 35232 is an appeal from the order overruling the motion to vacate and set aside the order and judgment appealed from in cause 35231. Cause 35234 is an appeal from the order overruling the motion to vacate and set aside the order and judgment appealed from in cause 35233.

It is well settled that no appeal lies from an order overruling a motion to vacate or set aside a judgment or order. The appeal must be from the judgment in question and not from the order overruling the motion to set aside the judgment. For the reasons stated, the appeals in causes 35232, and 35234 should be and are hereby dismissed.

The dismissal of the appeals in causes 35232, 35233 and 35234 leaves only cause 35231 to be determined on its merits.

As heretofore stated, cause 35231 is the appeal from the order of March 3, 1936, allowing Messrs. Cook and Lauf additional compensation, as commissioners and custodians, in the sum of $40,000 each, and fixing their monthly allowance at the sum of $500 each, beginning January 1, 1936. The order also allowed Mr. Gilbert Lamb additional compensation, as attorney for said commissioners and custodians, in the sum of $20,000 and fixed his monthly compensation at the sum of $500, beginning March 1, 1936.

The order allowing such compensation and directing that it be paid out of the fund cannot be sustained. In the first place, Messrs. Cook and Lauf are not entitled to any compensation as custodians to distribute the fund for the reason that the order appointing them as such custodians was in excess of the court's jurisdiction and void because violative of Section 5874 of the Insurance Code. In the second place, whatever compensation Messrs. Cook and Lauf were entitled to as referees was litigation costs and for that reason it should have been taxed against the losing parties and paid by them. If the court had no jurisdiction to appoint Messrs. Cook and Lauf as custodians, the conclusion follows that it had no jurisdiction to appoint Mr. Lamb as attorney to represent them as custodians. If Mr. Lamb was entitled to any compensation for advising and assisting Messrs. Cook and Lauf as referees, such compensation, if any, was litigation cost and should have been determined and taxed against the losing parties at the judgment term which was not done. There is no authority for paying any of the compensation in question out of the fund.

For all of the reasons stated, the order of March 3, 1936, allowing compensation to Messrs. Cook, Lauf and Lamb and directing the payment of same out of the fund in the hands of said alleged custodians should be reversed. It is so ordered.Hays, C.J., Gantt and Douglas, JJ., concur. Tipton, J., dissents in separate opinion in which Ellison and Leedy, JJ., concur.