Farmers & Merchants Insurance ex rel. Benneson v. Needles

Ewing, Judge,

delivered the opinion of the court.

This is an action on a promissory note alleged to have been executed by defendant to plaintiff. An amended petition was filed which alleges substantially that the Insurance Company is a corporation duly incorporated under the laws of the State of Illinois, with power to sue and be sued, &c.; that "W. H. Benneson was duly appointed receiver by the Circuit Court of Adams county in the State of Illinois, of all the rights, property and assets of the plaintiff in 1869, and gave bond which was duly approved, &c. That as such receiver he is in possession of the property and effects of said corporation. The petition then alleges the execution of the note by defendant to plaintiff, said corporation, and that said note is part of the assets and property which came to the hands of said receiver, and that the same is due and unpaid.

Defendant demurred to the petition assigning several grounds which may be resolved into the two following:

That it is not alleged in said petition that the Farmers & Merchants Insurance Company was a corporation and duly authorized to contract, sue and be sued, &c., on the 18th day of April, 1866, the day on which the note sued on was executed to the plaintiff by defendant.

That it is not alleged that plaintiff, the Insurance Company, made an assignment of all the rights, property and assets of the plaintiff to any person or persons prior to the alleged appointment of Benneson as receiver of said property.

The demurrer was sustained and final judgment rendered thereon.

1. The defendant having entered into the contract with the . Insurance Company in its corporate name thereby admitted it to be duly constituted a body politic and corporate. (Ohio & M. R. R. Co. vs. McPherson, 35 Mo., 13, 26 ; The Dutchess Cotton Manufactory vs. Davis, 14 Johns, 238; Jones vs. Cincinnati Type F. Co., 14 Ind., 89 ; Hubbard vs. Chappell, Id., 601.)The first point therefore is not well taken.

*19 1. It is admitted by tbe demurrer that Benneson was duly appointed receiver, and as such is in possession of tbe property and effects of the corporation including tbe note in controversy. And as it does not appear by any averment in tbe petition, that tbe note bas ever been assigned or transferred by tbe payee thereof, tbe corporation only can maintain an action thereon, unless tbe receiver as such bas tbe right of action. A receiver cannot sue in a foreign jurisdiction for tbe property of tbe debtor. (Booth vs. Clark, 17 How., U. S., 322.)

Judgment reversed and cause remanded, tbe other Judges concur, except Judge Tories, who having been of counsel, did not sit.