Waters v. New York Life Insurance

ELLISON, J.

Plaintiff, as administrator of the estate of Francis O’Connor, recovered judgment on a policy of insurance issued by defendant on the life of O’Connor payable at his death to Mildred and Harry O’Connor. There was a judgment by default against defendant, which was made final. At a subsequent term defendant instituted the present proceeding by motion to vacate the judgment. The trial court refused to do so and defendant appealed.

It appears that the policy provided that the insured could change the beneficiary, and it is said that he did so by making it payable to his estate. He died in Iowa and Mildred and Harry O’Connor, denying that there was a change of beneficiary, brought their action against defendant in that State. Defendant became aware of the claim of this plaintiff as administrator of the estate in this State and asked of the Iowa court that the plaintiffs in the suit there and the administrator interplead. This was granted and this plaintiff, being out of the jurisdiction of that court, refused to do so. An administrator was then appointed in Iowa and he did inter-plead and make claim for the money. That case was tried and the Iowa court decided in favor of the plaintiffs O’Connor.

In the meantime this plaintiff having been appointed administrator of the estate in this State brought his action and obtained judgment by default as already stated. Jurisdiction of defendant was obtained by service on W. D. Vandiver, Superintendent of Insurance Department for Missouri. [R. S. 1899, sec. 7991.]

*687Objections to tbe action of tbe trial court in refusing to vacate the judgment are in great part attacks on the validity of tfiat judgment. Most of these objections are of such character as should have been made before the case was closed by the judgment, and are too late now. It is claimed by defendant that the insured died in Iowa and that his residence was there. But plaintiff claims deceased was a resident of this State and that letters of administration were properly issued to him. This was a matter that should have been contested before judgment. It did not affect the jurisdiction of the trial court.

But defendant questions the sufficiency of plaintiff’s petition to give jurisdiction to the Missouri court “in that it does not allege that the plaintiff’s cause of action accrued in Jasper county, it does not state that the defendant had any office or agent in Jasper county, and in fact defendant had no office or agent in Jasper county, and it does not state that the defendant had complied with the laws of the State of Missouri in reference to foreign insurance corporations doing business in the State of Missouri, and it does not allege that a permit to do business as an insurance corporation (in) the State of Missouri had ever been granted defendant by the Secretary of State of Missouri, and it does not allege that the said company had designated any person upon whom service of process could be had on the defendant in the State of Missouri.”

We do not consider that these objections went to the extent of destroying the jurisdiction of the trial court. A party litigant suffering judgment to go against him by default cannot be allowed, after it has become final, to bring up objections which should have been interposed before judgment. There was jurisdiction of plaintiff’s cause of action and .of defendant’s body in the trial court, and we do not see where it is entitled *688to any relief now, unless it be on the ground of fraud, and of that there is no evidence.

The judgment should be affirmed.

All concur.