INSURANCE COMPANY V. BANGS, 103 U. S. 435 (1880)

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U.S. Supreme Court

Insurance Company v. Bangs, 103 U.S. 435 (1880)

Insurance Company v. Bangs

103 U.S. 435


1. Where a suit is brought not to enforce a claim or lien upon property, but to cancel a purely personal contract, the circuit court cannot acquire jurisdiction of the defendant unless he appear or there be personal service of process upon him within the district. If he is an infant, the decree against him is void on its face, the record showing affirmatively the nonservice of process, although a guardian ad litem was appointed for him in his absence.

2. The necessity for such service on the infant is not obviated by the state statute requiring his general guardian "to appear for and represent his ward in all legal suits and proceedings unless when another person is appointed for the purpose as guardian or next friend."

This was an action on two policies of insurance upon the life of James H. Bangs, each for $5,000, issued on the 22d of November, 1875, by the New York Life Insurance Company, and made payable to the plaintiff. It was originally commenced in a court of the state of Minnesota, and was removed to a general denial of its states on the petition of the company, averring that he was a citizen of Minnesota, and that the company was a corporation created under the laws of New York. To the complaint the company answered and, in addition to a general denial of its allegations, set up that the insured had committed suicide by voluntarily taking poison with the intention of producing death, and when the policies were applied for and obtained, he was represented to the company to be in sound health, correct in habits, to have every prospect of a long life, and to be a person who fully intended to live as long as possible in the course of nature; that the company relied upon these representations, and believed them to be true, and would not otherwise have accepted the risks and issued the policies, or either of them; but that nevertheless the representations were false and fraudulent, and, at the time they were made and the policies applied for and obtained, the insured intended to take his life within a short period, and thereby to defraud the company out of the amount of insurance, and that in execution of this fraudulent purpose, he took his life. The action was commenced in June, 1876, and in chanrobles.com-redchanrobles.com-red

Page 103 U. S. 436

July following the order for its removal was made; but the proceedings were not in fact transferred until the subsequent December, when the answer was filed. Nothing further was done in the case until June, 1877, when the company obtained leave to file a supplemental answer setting up a decree which, during that month, it had recovered against the plaintiff in the Circuit Court of the United States for the District of Michigan. It appears that in March, 1876, the company had commenced a suit in equity in that court against the plaintiff here and his mother to obtain a cancellation of the policies of insurance and an injunction against instituting or prosecuting any action at law upon them. The bill averred -- what is substantially stated in the answer above, but with much greater detail -- that the insured obtained the policies with the intention, at the time, of taking his life soon afterwards, and thereby defrauding the company out of the amount of the insurance, and that he carried out this intention by taking poison, which caused his death. The supplemental answer, after setting forth the institution of the suit, averred that subpoenas were issued and served upon the defendants; that Edson C. Bangs, the son of the insured, to whom the policies were payable, being a minor, one Henry A. Harmon was appointed by the court guardian ad litem for him; that by this guardian he filed an answer denying that the death of the insured was caused by poison, or that the policies were obtained for the purpose of defrauding the company, or that death was effected in pursuance of any such fraudulent design, and all allegations of fraud in the bill; that afterwards proofs were taken and a decree was rendered therein adjudging the policies to be void and ordering their cancellation, and perpetually enjoining the defendants from instituting and carrying on any action at law upon them.

An exemplified copy of the record was annexed to and made part of the supplemental answer. To this answer the plaintiff demurred on the ground, among other things, that the proceedings of the circuit court of the United States were void in that it appeared from the record that the court never had jurisdiction of the person of Edson C. Bangs, the plaintiff here, and no jurisdiction in equity over the action under the circumstances mentioned. The demurrer was sustained, and subsequently chanrobles.com-redchanrobles.com-red

Page 103 U. S. 437

the defendant obtained leave to withdraw the original answer so as to rest its defense upon the supplemental answer and the matters therein pleaded. Judgment was accordingly rendered for the plaintiff for the amount claimed, and to review that judgment the case is brought to this Court on writ of error.

The record of the equity suit in Michigan showed on its face that the subpoena issued in it was never personally served upon the defendant, Edson C. Bangs, the plaintiff in this action; that it was only served on his general guardian after he, Bangs, had left the state and gone to Minnesota to reside; that upon the affidavit of the complainant's solicitor, stating that the subpoena and injunction in the case had been a week in the hands of the marshal, who reported that he could not find the defendants in his district, that they had locked up the house where they resided and had temporarily left the state, and that he was unable to find any one in charge of the house, the court made an order declaring that the service of the subpoena and injunction on the general guardian was a good service upon the infant; that afterwards the general guardian was appointed guardian ad litem for him, but not making any appearance for him, and not intending to submit the rights of the infant to the adjudication of the court, his appointment was revoked, and Henry A. Harmon was substituted as such guardian ad litem in his place, and that he subsequently acted in the case in that capacity for the infant.


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