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GILA BEND RESERVOIR & IRRIGATION | dence,”—the decree and opinion of the suCOMPANY, Appt.,

preme court, and a statement of facts pre

pared for the review by this court. The GILA WATER COMPANY.

opinion was filed March 26, 1904, and the

statement of facts allowed February 21, Judgment—res judicata-jurisdiction. 1905, nearly a year after the decision. In

The jurisdiction of a territorial court | addition there appears a motion made in to order a sale of property by a receiver ap- the supreme court by the appellee to strike pointed in an earlier action without for: from the files the abstract of record for mally extending the receivership to the suit several reasons, one of which was that it in which the decree of sale was made candid not contain the findings of fact and the not be collaterally attacked by a party to such suit after unsuccessfully prosecuting conclusions of law of the district court. appeals to both the territorial supreme This is followed by the suggestion of a dimcourt and the Supreme Court of the United inution of the record in what purports to be States, in which the jurisdictional question these findings and conclusions. It does not was not presented. *

appear that any action was taken by the

supreme court upon this motion, or any [No. 226. October Term, 1905.)

leave given to amend the record by the addiPetition for rehearing filed January 7, 1907. tion of the findings and conclusions. Decided April 8, 1907.

We copy in full the statement of facts prepared and allowed by the supreme court:

“Statement of facts in this case in the APPEAL from the Supreme Court of the

Territory of Arizona to review a decree nature of a special verdict made hy the suwhich affirmed a decree of the District Court preme court of the territory of Arizona, and of Maricopa County, in that Territory, in also rulings of the court below on the adfavor of defendant in a suit to quiet title. mission and rejection of evidence as exceptPetition for rehearing denied.

ed to on the foregoing transcript of the recSee same case below (Ariz.) 76 Pac. 990. ord in the above-entitled cause, to be used The facts are stated in the opinion. by appellant herein in its appeal to the Su

Messrs. Hugh T. Taggart and William C. preme Court of the United States. Prentiss for appellant.

"That the above-entitled cause was tried Mr. C. F. Ainsworth for appellee.

in the court below upon the complaint,

which was the statement of a cause of Mr. Justice Brewer delivered the opinion action to quiet title to the property deof the court:

scribed in said complaint against the deDuring the October term, 1905, and on fendants therein mentioned; the amended May 14, 1906 (202 U. S. 270, 50 L. ed. 1023, answer of the Gila Water Compary, one of 26 Sup. Ct. Rep. 615), the decree of the su- the said defendants, denying the plaintiff in preme court of the territory of Arizona in said complaint being the owner of the propthis case was affirmed. On May 26 (the last erty therein described, said defendant furday of the term) an order was entered ther alleging peaceable and adverse posseswhich in effect continued the jurisdiction sion of the property described in plaintiff's of this court to the present term, giving op-complaint under the title and color of title portunity to appellant to present a peti- for more than three years preceding the date tion for rehearing during the vacation. of the commencement of the above action, That petition was presented, and, in the and also alleging peaceable and adverse posearly part of this term, after full consid- session of said property for more than five eration, was denied. Subsequently, lest in years before the commencement of the suit, the confused state of the record it might using and enjoying the same, paying taxes be supposed by either of the parties that thereon, claiming under deeds duly recorded; the facts had been misapprehended, we, on the cross complaint of said defendant, Gila January 7, 1907, entered an order withdraw. Water Company, claiming to be the owner ing the memorandum denying the petition in fee simple of all the property described for rehearing, and granting leave to coun- in plaintiff's complaint in said cause, and sel on both sides to file such additional the answer of appellant herein to said Gila briefs as they desired. In pursuance of this / Water Company's cross complaint; leave briefs on both sides have been filed, “That all of the other defendants menand we have again examined the record. tioned in said complaint answered and dig

This consists of the pleadings, the de- claimed any right, title, and interest in and cree in favor of the defendant, a bill of ex. to the property described in said complaint; ceptions divided into two parts,-one being “That this supreme court adopts and a statement of exceptions, and the other a makes a part of this statement of facts the narrative of the “circumstances and evi- | bill of exceptions in this case, part I., ex

*Ed. Noie.--For cases in point, see vol. 30, Cent. Dig. Judgment, § 1237.

ceptions, part II., circumstances and evi- plete, but it is helped by a reference to the dence, as certified and signed on the 24th, bill of exceptions in the trial court, which day of November, 1902, by Hon. Edward is adopted and made part of the statement. Kent, the presiding judge who tried this True, much of the matter in this bill is a cause below, the same as if it were set mere recital of testimony, but we find in it forth at length herein;

copies of certain orders and decrees. Put“That no order was made in the court be- ting all together, we are enabled to see low consolidating the case known as No. clearly the scope of the inquiry. It appears 1728 in the trial court and the case known that prior to this litigation two suits were as No. 1996 in the same court, said cases brought in the trial court, one numbered being those the record of which is referred 1728 and the other 1996. The appellant was to in the above-mentioned bill of exceptions; defendant in the latter. In the first an or

“That the receiver appointed in said case der was made December 6, 1893, appointing No. 1728 made the sale and executed the James McMillan receiver of the property deed under which the Gila Water Company, now in question. The complaint in suit No. appellee, claims title to the property in dis- 1996, alleging that the court had already pute; that no order was in terms made ex appointed a receiver in the prior case, tending the receivership in said case No. prayed the appointment of a receiver or an 1728 to said case No. 1996, the latter case enlargement of the powers of the one then being the one in which said receiver made acting, and that he take possession of the said sale, and, by the judgment rendered property and sell the same to pay the debts. therein, assumed to convey the title to said No order appears of record in terms either property; that the only orders made in said consolidating the two cases or extending the case No. 1996 relating to said rrceivership receivership in case No. 1728 to case No. are those dated May 29, 1894, November 23, 1996. A decree was entered in suit No. 1898, July 21, 1894, November 20, 1894, and 1996, of date November 20, 1894, which, January 10, 1895, referred to in said bill of after finding the amounts due certain credexceptions.

itors, adjudged and decreed “that James Mc“That from the foregoing record and facts, Millan, the receiver heretofore appointed by the court finds that plaintiff and appellant this court, and now in possession of said herein, Gila Bend Reservoir & Irrigation premises, under the orders of this court, Company, a corporation, has not and did proceed to advertise and sell said property not have, at the commencement of this ac and distribute the proceeds as directed in tion, any cause of action in respect to, nor the decree.” On January 3, 1895, a report, did it have and has not now any right, title, bearing a double heading, to wit. the titles or interest in and to the property or any and headings of both suits Nos. 1728 and part thereof mentioned and described in the 1996, and purporting to be of a sale of the complaint herein; that the defendant appel- property by James McMillan, receiver, unlee, Gila Water Company, a corporation, der the order and decree in suit No. 1996, was, at the time of the commencement of was filed in the court, and on January 10, this action and is now, the owner in fee 1895, an order bearing the same double simple and in possession of all the property heading of the two suits was entered, conmentioned and described in plaintiff's com- firming that sale. Subsequently a deed of plaint herein.”

the property to the purchaser was executed, Appellant invokes the doctrine laid down purporting to be from the receiver duly apin Herrick v. Boquillas Land & Cattle Co. pointed in the two equity suits, with titles 200 U. S. 96, 98, 50 L. ed. 388, 389, 26 Sup. and numbers as above. Ct. Rep. 192; Harrison v. Perea, 168 U. S. The decree in suit No. 1996 was appealed 311, 323, 42 L. ed. 478, 482, 18 Sup. Ct. Rep. to the territorial and United States Su129, and cases cited in the opinion, to the preme Courts, and affirmed by each of them. effect that our jurisdiction on an appeal | The briefs of appellant in the territorial sufrom the supreme court of a territory, preme court show that the question of the "apart from exceptions duly taken to rul-jurisdiction of a court, in a particular case, ings on the admission or rejection of evi-over property in its actual possession, was dence, is limited to determining whether the not presented. In the brief of appellant filed findings of facts support the judgment.” Of in this case this statement appears: course, if there are no findings or statement “So confident were counsel of the lack of of facts and no exceptions in respect to the equity in the bill and of reversal by the introduction or rejection of testimony, the appellate courts that the fundamental ques. decree will be affirmed, if responsive to the tion of jurisdiction, now urged, was overallegations of the pleadings.

looked. The statement of facts prepared by the "Indeed, the attention of counsel was so supreme court, standing by itself, is incom-centered upon that point and the question of change of venue that in the brief in this JAMES B. SWING, as Trustee for the Credcourt it was even stated that the receiver itors of the Union Mutual Fire Insurance had been appointed upon motion of the Company of Cincinnati, Ohio (Formerly a plaintiffs in suit No. 1996, and that the de

Corporation), Plff. in Err.,

V. cree therein of November 20, 1894, provided

WESTON LUMBER COMPANY. for the appointment of a receiver."

It is now contended that, inasmuch as the Error to state court-Federal questionquestion is one of jurisdiction, neither the

how raised. omission to call attention to the inatter in

A decision of the Michigan supreme the prior litigation nor the misrecital of court that a foreign mutual insurance comfact operates to render the decree in that pany which had not been authorized to do case res judicata upon the question, but business in the state as provided by the leaves the matter open for present inquiry. state statutes could not maintain a suit Counsel are mistaken. In that litigation the to collect assessments due on a policy is. present appellant was the defendant. The sued by one of its agents in another state property was in the possession of the court, igan who was unable to place the whole line

on request of an insurance broker in Micheven if held under a prior receivership. The in his own authorized companies cannot be decree directed its sale. It was sold. The reviewed in the Supreme Court of the sale was confirmed, the deed made, and the United States, where the only showing of property delivered to the purchaser. The a Federal question raised before judgment appellant at least cannot now question the is made by a request for a finding as matter jurisdiction of the court in that suit, or the of law that the state statutes do not, and title which it conveyed to the purchaser at could not, under the Federal Constitution, the sale. A failure to make a defense by a outside the state and there procuring insur

prohibit the insured from going or sending party who is in court is, generally speaking, ance on its property located in the state equivalent to making a defense and having from an insurance company not authorized it overruled.

to do business therein, which is entirely in. Further, in the opinion heretofore filed, adequate for the purpose. * after referring to the declaration of the supreme court of the territory that the trial

(No. 145.] "court, by its action, ratified the acts of the receiver in the second suit, and thereby, in Argued January 10, 1907. Decided April 8, effect, extended his power and authority as

1907. such receiver to such second suit,” we said (274, p. , . .

N ERROR to the “The objection made by the appellant to

Michigan it is, as we have indicated, that suit No. which affirmed a judgment of the Circuit 1996 was a proceeding in rem, and that the Court of Schoolcraft County, in that state, court and not acquire jurisdiction of the in favor of defendant in a suit to collect property for the reason that it was in the assessments due on a policy of insurance custody of the court in suit No. 1728, and issued by a foreign insurance company not that the court in the latter case did not ex. entitled to do business in the state. Dis. tend the receivership to the No. 1996, nor missed for want of jurisdiction. consolidate the suits, and, therefore, had no See same case below, 140 Mich. 344, 103 power to order the sale of the property by N. W. 816. the receiver in No. 1728.

The facts are stated in the opinion. “This is tantamount to saying that the Messrs. Patterson A. Reece and Virgil I. absence of formal orders by the court must Hixson for plaintiff in error. prevail over its essential action. It is clear Mr. Edward C. Chapin for defendant in from the record that the district court considered the cases pending before it at the same time, considered No. 1996 as the com- Mr. Chief Justice Fuller delivered the plement of No. 1728, regarded the cases in opinion of the court: fact as consolidated, and empowered the re- This action was brought in the circuit ceiver appointed in 1728 to sell the property court of Schoolcraft county, Michigan, by and distribute the proceeds as directed by Swing, trustee of the Union Mutual Fire the decree in 1996."

Insurance Company, a corporation of Ohio, Nothing further need be added to show against the Weston Lumber Company, a that the case was rightly decided. The pe- corporation of Michigan, to collect its share tition for a rehearing is denied.

as a policy holder of an assessment made

by the order of the supreme court of Ohio Mr. Justice Moody took no part in the in liquidating the liabilities of the insurance decision of this case.

company. *Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1080.

27 S.C.-32

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The assessment against defendant was in rectly or indirectly, in transacting or so. respect of a policy for $5,000 and a renewal liciting within this state any insurance busithereof on defendant's lumber and other ness for any person, persons, firm, or copartproperty at Manistique, Michigan. The in- nership who are nonresidents of this state, surance company was never licensed to do or for any fire or inland navigation insurbusiness in Michigan, and the defense was ance company or association, not incorpopleaded that it was a foreign corporation, rated by the laws [or] of this state, or to not authorized to transact business in that act for or in behalf of any person or perstate, and that the policies were issued in sons, firm or corporation, as agent or broker, direct violation of the laws of Michigan, the or in any other capacity, to procure, or ascompany not having complied with those sist to procure, a fire or inland marine policy relating to foreign insurance companies do- or policies of insurance on property situated ing business in the state; and that the con- in this state, for any nonresident person, tracts of insurance were at variance with persons, firm, or copartnership, or in any and contrary to the settled policy of the company or association without this state, state.

whether incorporated or not, without proThe case was tried by the court without a curing or receiving from the commissioner jury. At the conclusion of the trial plain of insurance the certificate of authority pro. tiff made requests for certain findings as vided for in § 23 of an act entitled 'An Act matters of law, including this:

Relative to the Organization of Fire and “11. That the statutes of this state do not Marine Insurance Companies Transacting and could not, under the Constitution of the Business within This State,' approved April United States, prohibit this defendant from third, eighteen hundred and sixty-nine, as going or sending outside of this state and amended. Such certificate of authority shall there procuring insurance on property be- state the name or names of the person, perlonging to the defendant and located in this sons, firm, or copartnership, or the location state, from an insurance company not au- of the company or association, as the case thorized to do business in this state;" may be, and that the party named in the which the court refused.

certificate has complied with the laws of Findings of fact and conclusions of law this state, regulating fire, marine, and inwere made and filed. It was found, among land navigation insurance, and the name of other things, that,

the duly appointed attorney in this state on “In the latter part of the summer of 1889 whom process may be served.” Act of 1881, defendant desired to increase the amount of g 1. insurance carried upon lumber accumulated (10467.) "But when, by the laws of this in its yards, and made application to a local state, any act is forbidden to be done by agency conducted by a banking institution any corporation, or by any association of inof the town for a considerable addition to dividuals, without express authority by law, the line of its insurance already held in that and such act shall have been done by a foragency.

Not being able to write, in one eign corporation, it shall not be authorized risk, in its own companies, the amount of to maintain any action founded upon such additional insurance desired, the

desired, the local act, or upon any liability or obligation, exagency, through W. C. Marsh, an employee press or implied, arising out of, or made or of the bank, who attended to its insurance entered into in consideration of, such act." business, placed twelve different policies Judgment was entered in favor of defendwith outside agencies. Part of this line of ant, and affirmed, on error, by the supreme insurance was sent to George R. Lewis & court of Michigan. 140 Mich. 344, 103 N. Company, an agency of Minneapolis, Minne. W. 816. sota, through which concern the $5,000 in- The supreme court held that a foreign surance involved in this case was placed mutual insurance company which had not with the said Union Mutual Fire Insurance been authorized to do business in Michigan Company of Cincinnati, Ohio.”

as provided by its statutes could not mainIt was admitted that the insurance com tain a suit to collect assessments due on a pany had never complied with any of the policy issued by one of its agents in another requirements imposed by the statutes of state on request of an insurance broker of Michigan on insurance companies of other Michigan who was unable to place the whole states seeking to transact business in Mich-line in his own authorized companies. Seaigan.

mans v. Temple Co. 105 Mich. 400, 28 L.R.A. Sections 5157 and 10467 of the Compiled 430, 55 Am. St. Rep. 457, 63 N. W. 408, citLaws of Michigan of 1897 are as follows: ing many cases, was referred to and quoted

(5157.) “That it shall be unlawful for from. It appeared therefrom that it had any person or persons, as agent, solicitor, been for years the policy of the state to surveyor, broker, or in any other capacity, limit the business of insurance to such corto transact or to aid in any manner, di- ' porations, domestic and foreign, as should be authorized to do business, after compli. dences of such credits are kept at the home ance with certain regulations and conditions office at all times when not needed in the prescribed by law, and that the statutes state. * were intended to be prohibitory in their

[No. 199.] character.

The power of the state to prohibit foreign Argued January 31, 1907. Decided April 8, insurance companies from doing business

1907. within its limits, or, in allowing them to do $o, to impose such conditions as it pleases

, I NERROR to the Supreme Court of the is undoubted. Hooper v. California, 155 U. which, reversing in part a judgment of the

State of Louisiana to review a judgment S. 648, 39 L. ed. 297, 5 Inters. Com. Rep. Civil District Court of the Parish of Or610, 15 Sup. Ct. Rep. 207; Security Mut. L. leans, in that state, sustained a tax on credo Ins. Co. v. Prewitt, 202 U. S. 246, 50 L, ed. its arising out of loans made by the local 1013, 26 Sup. Ct. Rep. 619; Chattanooga Nat. Bldg. & L. Asso. v. Denson, 189 U. S. 408, agent of a foreign insurance company to its

policy holders. Affirmed. 47 L. ed. 870, 23 Sup. Ct. Rep. 630.

See same case below, 115 La. 698, 39 So. What was held here on the facts was that

846. the contract was brought about and com.

The facts are stated in the opinion. pleted in Michigan by a representative of

Messrs. Charles Pollard Cocke, William the foreign corporation. So far as defend. ant was concerned its application for insur- Wirt Howe, and Walker B. Spencer for

plaintiff in error. ance was made and the business was done

Messrs. H. Garland Dupré, George H. Terwith the home office at Manistique, with which it was in the habit of doing business. riberry, F. C. Zacharie, and Samuel L. Gil

more for defendants in error. It was not a case of defendant "going or sending outside of this state and there pro- Mr. Justice Moody delivered the opinion curing insurance on property belonging to of the court: the defendant and located in this state from This is a writ of error to review the judg. an insurance company not authorized to do ment of the supreme court of Iouisiana, business in this state," as supposed in plain which sustained a tax on the "credits, tiff's eleventh request for finding. That re- money loaned, bills receivable," etc., of the quest is the only pretense in the record of a plaintiff in error, a life insurance company Federal question being raised prior to the incorporated under the laws of New York, judgments below, and was entirely inade where it had its home office and principal quate for that purpose. Naturally enough, place of business. It issued policies of life neither the circuit court nor the supreme insurance in the state of Louisiana, and, for court referred to any Federal question what the purpose of doing that and cther busiever.

ness, had a resident agent, called a superin. The writ of error cannot be maintained. tendent, whose duty it was to superintend Chicago, I. & L. R. Co. v. McGuire, 196 U. the company's business generally in the S. 128, 132, 49 L. ed. 413, 417, 25 Sup. Ct. state. The agent had a local office in New Rep. 200; Allen v. Alleghany Co. 196 U. S. Orleans. The company was engaged in the 458, 49 L. ed. 551, 25 Sup. Ct. Rep. 311. business of lending money to the holders of Writ of error dismissed.

its policies, which, when they had reached a certain point of maturity, were regarded as furnishing adequate security for loans. The

money lending was conducted in the followMETROPOLITAN LIFE INSURANCE ing manner: The policy holders desiring to COMPANY OF NEW YORK, Piff. in Err.,

obtain loans on their policies applied to the v. CITY OF NEW ORLEANS, The Board of company's agent in New Orleans. If the

Assessors for the Parish of Orleans, and agent thought a loan a desirable one he adJohn Fitzpatrick, State Tax Collector, communicating with the home office in New

vised the company of the application by etc.

York, and requested that the loan be grantTaxes-situs-property of nonresidents. ed. If the home office approved the loan the

State taxation of credits arising out company forwarded to the agent a check for of loans made in the regular course of busi- the amount, with a note, to be signed by the ness by the local agent of a foreign insur- borrower. The agent procured the note to ance company to its policy, holders is not be signed, attached the policy to it, and forbidden by U.S. Const. 14th Amend., where warded both note and policy to the home ofthe loans were negotiated, the notes signed, the security taken, the interest collected. fice in New York. He then delivered to the and the debts paid within the state, because borrower the amount of the loan. When inthe promissory notes which are the evi- I terest was due upon the notes it was paid

*Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, $$ 8, 9, 439.

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