ELLIS V. CONNECTICUT MUT. LIFE INS. 00.
considered the answer not such an one, in this or other respects, as the defendant was entitled to file under the order of the court, he should have moved to strike it out. Besides, the object of making the order allowing the defendant to file an answer nunc pro tunc was not so much, if at all, to compel him to make a defence to the action, as to give him the privilege of so doing, so as to secure to himself beyond a peradventure the benefit of his stipulation that his case should abide the event of the ot3er one. The stipulation was made without an answer being filed, and virtually suspended proceedings in the case; and if the defendant had seen proper he might have waited until there was a final judgment in, the case against Humason, and if such judgment wal> for the defendant tl.en moved on his stipulation to the action against him without answering the complaint at all. But apart from the attempted denial of the execution of the bonds, the answer is a sufficient defence to the' action, as it contains an allegation to the effect that Logan faithfully 'kept the condition of his bonds. That is sufficient to support the verdict and the face, and that was the only object record from being erroneous on in allowing an' answer to be filed at all. These are all the special grounds on which a new trial is asked in this case, and they are not sufficient. For this and the reasons given in U. S. v. Humason, the motion is denied.
Adm'x, etc., v.
CONNEOTIOUT MUT. LIFE. INS. Co ·.
(Circuit Court, D. Connecticut.
July 14, 1881.)
Statutes are to be considered prospective, unless the language is such as to leave no doubt that they were intended to be retrospective.
2. VOID JUDGMENT.
Upon a void judgment no action can be maintained.
The statute of Virg-inia passed in 1856, regulatinp; the conduct of the business of foreign life insurance companies who should do business therein, provided, among other things, that such companies should have an agent in that $tate upon whom service of process could be made. In 1877 the existing Jaw was amended so as to provide that, in case of the death of such an agent, his personal representative was authorized to accept service of process against such corporation. In 1852 the defendant, a foreign company, insured the deceased, Lewis Ellis, and in 1856 dulv appointed an agent with authority to accept
service of process in that state, who contInued to act as such up to the time of the'war, but not thereafter, to defendant's knowledge or with its consent, whose authority was not, however, formally revoked until 1866. This agent died in 1876, and one Edrington became his administrator. The death of the insured occurred in 1869, and in 1878 this plaintiff, the administrator upon hi. estate, brought a suit in a state court against this defendant by serving process upon Edrington, who had no authority from the defendant to accept service, and was not its agent, unless made so by the act of 1877. There was no appearance for the defendant, and the plaintiff recovered a judgment upon which this action was brought. Held, that the state court had no jurisdiction 4. B.um-SAME-VIRGINIA., ACT 01' 1877. Held,further, that Edrington was not made the defendant'll agent by thia act i that the act was prospective, not retrospective.
Wm. L. Royall, for plaintiff. Henry C. Robinsot&, for defendant. SmPMAN, D. J. This is an action at law upon a. judgment rendered by the circuit court of the city of Fredericksburg, ill. the state of Virginia. The defendant made no appearance in that court, and defends here upon the ground that it was never served with process, and that the court of Virginia had no jurisdiction. By 'written stipulation of the parties a jury was waived, and the case was tried by the court upon an agreed statement of facts. 1852 the defendant, a Connecticut corporation, insured the life of Lewis Ellis, a citizen of Virginia, for the, sum of $8,000, upon consideration that it should be a.nnually paid thenceforth, and to the end of his life, a specified preminm of insnrance. No premiuIUs were paid after June 28, 1860. Before that date they had beenduly paid. Said Ellis died in the year 1869., In the year 1856 the general assembly of Virginia passed a statute providing, in substance, as follows:
Section 1. Be it enacted by the general assembly, that life insurance company, unless incorporated by the legislature of this commonwealth, shall make any contracts of life insurance within this state until such insurance company shall have complied with the provisions of this act. Sec. 2. Every such insurance company shall, by a written power of attorney, appoint some citizen of this commonwealth resident therein its agent or attorney, who shall accept service of all lawful processes against such com- ' pany in this commonweaUh; and cause an appearance to be 'entered in any action in like manner ,as if such corporation had existed and been duly' served with process within this state. . Sec. 3. A copyo! such power of attorney, duly certified and authenticated, shall be filed with the auditor of public accounts of this cominonwealth, and copies thereof, duly certified by said auditor, shall be received in evidence in all courts of this commonwealth. Sec. 4. If any such agent or attorney shall die or resign or be removed, it shall be the duty of such corporation to make a new appointment, as afore-
ELLIS V. OONNJllOTIOUT :MUT. LIFJI INS. 00.
said, and file a copy with the said auditor of pUblic.accounts, as above presClibed, so that at all times. and while any liability remains outstanding on such insurance. there shall be within this state an attorn,ey authorized, as aforesaid; and no such power of attorney shall be revoked until after a like power shall have been given to some competent person, and a copy thereof filed, as aforesaid.
The sixth section provided that if any insurance company should make insurance without complying with the requisites of the act, the .contract should be valid, but the agent of suoh company should be liable to a penalty. In 1856 the defendant duly appointed A. A. Little, of Fredericksburg, its agent, with authority to accept service of process. The agency was subject in terms to be revocable at the pleasure of the company, but this right of revocation was set· out in terms only in the agreement between the company and Little. He continued to act as its agent until the beginning of the war of the rebellion, but did not so act afterwards with its knowledge or consent. Immediately after the war, thedefElndant informed Little that his agency had been revoked by the war,and in the spring of 1866 it formally revoked any agency. The defendant has done no business in Virginiasince 1861. In 1866 it examined the question of the expediency of resuming business therein, and in consequence of certain legislation which had taken place abandoned the idea. Little died in the year 1876, and C. W. Edrington duly became his administrator. In 1877 the legislature of Virginia passed a statute amending sections 22 and 32 of chapter 36 of the Code of 1873. Section 22 was section 4 of the act.of 1856, and was amended so as to read as follows:
"If any such agent or attorney shall die, or become insane, or remove without this state, or resign, or be removed. it shall be the duty of such corporation to make a new appointment as aforesaid, and file a copy with the said auditor ot public accounts, as above prescribed: pr9vided. that if such corporation shall fail to make such new appointment of agent or attorney, upon the death or insanity of any such agent or attorney so appointed as aforesaid. the personal representative of any such deceased agent. and the committee pf any such insane agent, shall be regarded and held as agent or attorney. authorized to accept service of process against such corpor:1tion, and entering appearance as aforesaid; and if such cQrporation shall fail to make such new appointment of agent or attorney, upon the removal or resignation of any such agent or attorney so appointed as aforesaid, then the auditor of public accounts shall be authOrized to accept service of process against Buch corporation and enter appearance as aforesaid, so that at all times, and while any liability remains outstanding on such insurance, there shall be within.tbis.statel:.n attorlley authorized as. aforesaid; and no such
power of a.ttorney shaU be revoked until after a like power has been given to some competent person, and a copy thereof tiled as aforesaid."
In March, 1878, the plaintiff, who was then the administratrix upon Lewis Ellis' estate, commenced suit against the defendant in the circuit court of the city of Fredericksburg upon said policy. Service of said suit was made upon said Edrington alone. No appearance was made by the defendant. Damages were assessed by a jury against the defendant in the sum of $2,200, and interest from, October 6, 1877. No other service was made. Edrington had no authority from the defe:qdant to accept service, and was not its attorney or agent, unless made so by the act of 1877. It is admitted that the policy became extinguished by the non-payment of premiums in 1861, and that no action would lie for the .amount insured thereon, (Ina. Co. v. Statham, 93 U. S. 24;) and that the agency of Little was, under the circumstances heretofore stated, terminated by the breaking out of the war. Ina. Co. v. Davis, :95 U. S. 425. But it is insisted that the defendant is bound by the judgment of the Virginia court. The plaintiff's argument is that, by virtue of the act of 1856, the defendant entered into a contract with the state of Virginia, and with each of the policy-holders, to Keep an agent in the state to accept process; that although this contract was suspended during the war, it revived thereafter, notwithstanding the defendant had ceased to do business within the state, .and had abandoned the idea of re-engaging in business, beoause there was or might be a liability upon it for the equitable value of policies which had become forfeited by the war, with interest, and' that the defendant failing to appoint an agent, the state of Virginia had the right to direct how service of process should be made, and that such service so made would be valid. I Assuming that each proposition is true, but not admitting the truth -of either as stated, it remains to be shown that Virginia has directed how process should be served within the state upon a foreign corporation which had, long before the date of the supposed direction, ceased .to do business therein. It is said that the state gave such direction by the act of 1877. It seems to me plain that the act of 1877 is prospective, and relates only to the companies which were, at the time of the passage of the act, engaged in the business of making or renewing contracts of insurance withiI,l the state, or should thereafter engage in such business. "Statutes are to be considered prospective, unless the language is expressly to the contrary, or there is a necessary implication to that
IN; 'lUll' 'wAl.t.
effect." Harvey v. Tyler, 2 Wall. 328; Warren Manuj'g Co. v. .£tna Ins. Co. 2 Paine, 501. The act is not in terms retrosuectiv3. It ca.nnot be presumed, in the absence of express terms, that it was the intention of tl1e legislature that the aet should apply to a company which had abandoned business in 1861, and thai; it should be conto provide that the of an agent who had died before the passage of the act, and whose powers terminated in 1861, was clothed with power to accept service in 1878. Such a construe'tion of the statute is not permissible unless language is used which admits of no other construction. In my opinion the state court of Virginia had no of the defendant. Judgment should be entered. for the defendant.
WALL, a Minor, etc.
July 2, 1881.)
MINOR-CoNTRACT OF ENLISTMENT-AVOIDANCE.
A minor's contract of enlistment is voidable only, and not void. If, &iter enlistment, he commits a military offence, is actually arrested and in course of trial before the contract is duly avoided, he may be tried and punished
Where a minor enlists in the marine corps of the United States, desenshis post and goes home, is arrested and in course of trial before the contract of enthat the trial must be proceeded with. listment is avoided by him,
Appeal. Brown d; Alger, for petitioner. Geo. P. Sanger, Jr., Asst. Dist. Att'y, for the United States. LOWELL, C. J. John B. Wall was enlisted in the marine corps of the United States, January 28, 1879, taking the usual oath that he was . upwards of 21 years old. He served with acceptance, and was commended and promoted. In March, 1881, being then stationed at the navy-yard, in Charlestown, he deserted his post at night and went home to his friends. He was arrested in May, 1881, as a deserter, and his case being reported to the secretary of the navy at Washington, an order was sent by him to call together again a general court-martial which had lately been sitting, and to try Wall for desertion. This order was received May 11, 1881, at about 9 o'clock in the forenoon. At noon of the same day a writ of habeas corpus was served on Colonel Hebb, the officer commanding the marines at Charlestown. Upon the hearing before Judge Nelson, in the district court, facts a.ppeared; and also that Wall was under 18 years of age when he