Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1911-05-05
BIG LEGAL BATTLE BEING wAn9n
OVER INSURANCE ON L
surToM's liFg.
ILLINOIS ACCIDENT COMPANY
MAKES PECULIAR pEFENan
Sets Up Claim That le Was Unantfor.
ICED to Do Business In Iowa, Whiie
Admitting Il Did so-lovvsr coura
Gives Widow Judemsns and Nosifiea
Members to Pay Assessments.

GAs
ton' widow OF the late ]. l.. Sutton. on
the one hand. and tho Illinois Cons
mercial Mems Association on the other.
and altho Judgment was rendered by
the district court Of Kossuth county In
the plaintiffs favor for $1,000. the end
is not yet. Sutton was q stock food
man who got into trouble by his meth
DDS OF doing business. and who was
E!!ec :.cs: train. :. was ociieved
oy many that he committed suicide.
but this could not be proved.
When the late J. L. Sutton died he
held policies for $4,000 each In the Iowa
State Travelling. Mems Association ana
the Illinois Commercial Mems Assoc
citation. Payment In each case was re-
fused and against each company a suit
was brought In the district court OF
this county to enforce collection. The
Iowa concern filed answer. denying
liability on the ground, among other
things. that the insured had committed
suicide. contrary to tho rules OF the
association. But this casa never came
to trial. for 1t was settled last Febru-
ary. by stipulation.
In the Illinois case. the defendant
made no formal appearance OF record.
but when tho suit was called in court
Attorneys Harrington s. Dickinson ap-s
peared as friends OF the court to Gail
attention to an alleged defect In the
service OF the notice OF action.
Claimed Lack Of Jurisdiction.
The point involved was this:-Under
our laws service OF notice Of suit
against non-Iowa insurance companiex1
that have been authorized by this state
to operate In Iowa may be made UPON
the auditor Of state instead OF upon the
parties themselves. Service in that way
was made In this case. But 1t hap
pens that the Illinois association has
never been authorized to do business
In this state. Hence It is claimed that
the district court OF this county has no
Jurisdiction In the instant cause be-
cause no sufficient original notice has
oeen served upon 1t.
Acting In accordance with this theory
the defendant could not npear in cour,
by attorney or otherwise because to do
SO would be to waive the point in
Issue. But it is the duty OF all at
torneys to call tho attention of courts
In which they practice to jurisdictions
al and other errors which the court
may commit In any case, whether such
attorneys are retained in the cause or
not, II 1t Is not advised of facts which
are not apparent and which the court
should know in order to take such ac-
ton as Is proper. II was In this ca.
pacity that Attorneys Harrington and
Dickinson warned the court against the
commission OF an error In this suit.
10 meet this objection, the plain
TN. by her attorneys, fled affidayits.
showing that In their belief. Attorneys
ftarrington & Dickinson were In real
tty retained as counsel for the defense.
IL that was true. then. since both of
these attorneys were present in court,
the defendant was in court also and
could be held to answer
Anidavits by G. A. Brunson, w. A.
Dutton. Grant Jordan and s. B.
French Of Algona and Charles Du-
high Of Ayrshire. all members of tho
association. and others were filed
20 show that whether the defendant
was authorized to do business in
this state or not 1t was neverthe-
less doing and had done for years q
big Iowa business.
Receiver is Named.
After 4 full hearing Judge Coyle
came to the conclusion, which 10
fortified by an opinion OF the su.
preme court OF this state. rendered
some years ago in similar case
from another county. that the de-
fendant, inasmuch as 1t is and has
long been doing business In Iowa 10
estopped from setting up tho claim
that it is not authorized so to do.
Thus. service of original notice up.s
on the auditor Of state was suffic.
lent for the purpose OF this case.
The court then entered Judgment
In the plaintiffs favor and against
the defendant for the full amount In
suit and appointed e. j. Murtagh re-
ceiver to collect all assessments due
to the association from its Iowa
members until sufficient amount
is received to pay the judgment and
costs. To qualify. Mr. Murtagh viii
be required to give bond in the penal
sum OF $4,000.
It is now up to the association to
take the next step. What that will
be is as yet unknown But. probab-
ly. the matter will be transferred
shortly to the federal court at Fort
Dodge. 1t may be a long time yet
before the case reaches o final ad-
justment.