Gilman v. Curtis

ROSS, J. To this suit Gilbert Curtis and the JEtna Life Insurance Company were originally made defendants. The controversy grows out of a policy of insurance issued by the company upon the life of one A. W. Tucker. The complaint charges that the policy was issued upon the life of Tucker and delivered to one Esther Cordelia Curtis, who, it is alleged, paid the premiums thereon. It is not alleged to whom the policy was made payable. There are, however, allegations and findings to the effect that Esther Cordelia Curtis assigned the policy to the plaintiff, who subsequently caused the same to be assigned to the defendant Gilbert Curtis as security for certain advances to be made by him for and on account of the said Esther Cordelia Curtis. The findings are that the advances so made, for the security of which Gilbert Curtis received the policy, amounted to $4,071.21. There is nothing in the case to show that the plaintiff became personally responsible for those advances. The prayer of the complaint is for a decree to the effect that the plaintiff is the owner of the policy, and entitled to collect and receive from the insurance company the money for which it was issued, the insured having deceased; that the interest of the defendant Gilbert Curtis therein be determined; that he be required to assign and deliver to the [275]plaintiff the policy, and, he failing to do so, that the clerk of the court execute such assignment, and that both defendants be restrained from disposing of the policy or the moneys mentioned therein to others than the plaintiff. There was also a prayer for general relief. The record discloses no service or process on or appearance by the JEtna Life Insurance Company, but the judgment entered in the cause recites that the action was “dismissed as against the JEtna Life Insurance Company and the intervener herein.” The sole parties to the suit are, therefore, the plaintiff and the defendant Gilbert Curtis.

The following is the decree entered in the court below:

“Now, therefore, by reason of said verdict and finding, it is ordered that judgment be entered herein in favor of the plaintiff, and against the said Gilbert Curtis, as of the date of said verdict, to wit, on the ninth day of May, 1881.

“It is therefore ordered, adjudged and decreed that the plaintiff is the owner of the policy of insurance, No. 81,308, issued by the JEtna Life Insurance Company upon the life of A. W. Tucker, deceased, which said policy of insurance was issued upon the life of said A. W. Tucker for the sum of $10,000, and which was duly assigned, transferred and set over to the plaintiff, as alleged in plaintiff’s complaint.