The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1897-04-06
CAUGHT THEM MAPPING
Attorneys for Insurance Com
panies Taken by Surprise
By the Pleading Made by Webb
McNall's Attorneys.
Judge Foster Gives the Insurance
Companies Until Next Monday to
Prepare Their Answer.

superintendent OF insurance, is in con-
tempt of the United States circuit court
for refusing the Mutual Life of New
York, the Connecticut Mutual and the
New York Life insurance companies
the right to do business in this state
until they paid the long contested claim
of Mrs. Sallie E. Hillmon, will be de-
cided by Judge Foster next Monday
After listening to three hours of argu-
ment bearing on the now famous ac-
ton of the insurance superintendent
Judge Foster took the case under ad-
visement at o'clock yesterday even
ing.
In the order issued two weeks ago by
Judge Foster, Webb McNau was cited
to appear in the federal court at 2
o'clock yesterday afternoon to show
cause why he should not be punished
for contempt. He was there ten min
utes before the hour named, accompa-
MED by his counsel, Attorney General
Boyle and -ex-Chief Justice David Mar
tin, and this trio were the first to enter
the court room. They We're soon fol-
lowed by the attorneys for the insur-
ance companies and the court room
then commenced filling with insurance
agents, solicitors and attorneys of this
city The party of counsel for the in
surance companies consisted of w. r.
Smith of Kansas City, J. w Green and
George J. Barker of Lawrence, Eugene
Ware of this city and Ed O'Bryan of
Sedgwick county and now general
western attorney for the New York Life
Insurance company.
Judge Foster was late It was sew
eral minutes past 2 o'clock when he set
tied himself in the easy chair behind
the bench and announced: Gentlemen,
am at your service"
Adjusting his glasses and looking at
some notes on his desk, he Immediately
added: Let me see this rs the case
against McNan, isn't it,"
NO, your honor, this is the case of
SalIie E. Hillmon against the Mutual
Life Insurance company and others, in
which McNau is made a party for con-
tempt" The reply came from Attor-
ney General Boyle, who, in a position
of ease, with his hands in his pockets
and his legs thrust well under the table,
was almost lost sight of in front of the
robust form of Judge David Martin.
"Oh, yes, I remember now. Well,
gentlemen, proceed with the case, said
Judge Foster.
Attorney General BoyIe's attitude of
ease at once turned to one of activity
as he took the floor in response to Judge
Fosters commanding invitation TO pro-
coed. His gaze sought some far-aWay
object out the north window of the
court room, and his fingers toyed with
his watch chain as he slowly but en-
phatically remarked: I want to first
call your honor's attention especially
to the fact that this is a, contempt pro-
ceeding; that McNall is summoned here
to answer for a contempt of this court"
His gaze shifted and fixed itself on Nc
Nall, sitting in a seat on the jury
stand. L don't care to say much just
now, but desire to file special appear
ance and motion on behalf of McNall
which 1 will read to your honor"
This special appearance and motion
of McNal, which Mr.. Boyle read, moved
that the proceedings of the insurance
companies be dismissed, and the order
citing him to appear for contempt
ouashed, vacated and set aside, for the
following reasons.
First, because the federal court had
no Jurisdiction in the matter before it;
second, that under the laws of the state
of Kansas the superintendent of insur-
ance has the right to exercise his dis
erection in issuing or refusing to issue
license to any insurance company;
third, because the eleventh amendment
to the constitution limits the
federal courts from extending to
any suit in law or equity com
ed States by citizens of another
state; fourth, that it has been judicially
determined by the supreme court OF
Kansas that the superintendent OF in
surance is intrusted with the exclusive
control Of the insurance department,
and that there is no appeal from MS
determination nor any power of review
in officer or tribunal recognized by law;
fifth. because none of the three insur-
ance companies have the right to do
business in the state further than per-
n7itted by the limitations of the state;
sixth because these proceedings are an
attenpt to treat with contempt the
powers and rights OF the state OF kan-
sas. and is an effort to induce the fed
eral court to usurp the powers OF the
state.
AS it afterwards turned out, this mo-
ton was in the shape of a surprise to
the attorneys for the insurance com
panies. They did not expect quite
such a pleading and were not exactly
nrepared to meet it. When Mr.. Boyle
finished reading ne laid the motion on
the table and it was quickly picked
up by George J. Barker. the Leading at
tOruev for the other side, who scanned
it with a rather troubled air. In the
meantime the attorney general was cit
ing authorities on the question OF con-
tempt, holding that TO be a contempt
an act must be committed in the pres
ence or immediate vicinity OF a fed
eral court while in session
When Mr. Boyle sat down, Mr.. Bar
ker arose and said:
.tYour honor. we expected a very diff
ferent pleading from the one entered IN
this motion by the other side IN TINS
case If we are to argue the case on
the points involved in this motion,
think it will probably be necessary to
continue the case and give US time to
Drepare We haven't the authorities
here now and are hardly ready to go on
with the case. OF course, We might
procure the authorities, ne aooeo' as
he resumed his seat
wen. gentlemen" said Judge FOs-
ter. I really supposed you were ready
to +rv this case this afternoon, and
would have your authorities here There
is nothing in the motion read by Mr..
RovIe that is surprising or unexpected
in the least, and it seems to me that 1t
is lust the stand that side might have
been expected to take
I've are ready to go on with the case,
vo,rr honor interposed Attorney Cen
I should like to hear the case this
afternoon gentlemen said Judge Eos
fer There is an act of congress which
saws something about contempt pro-