140 Mo. App. 619 | Mo. Ct. App. | 1909
(after stating the facts). — ■ Prom the instructions given by the court, it will be noted that in the first place the court held, in effect, that the reception of dues and assessments from Baker by the local camp, the fact of his alleged conviction not being communicated to the superior authorities of the Order, was no estoppel against the Order setting up forfeiture. As plaintiffs have not appealed from this declaration of law, although their counsel, as well as counsel for defendant, have argued this proposition with great earnestness and with much learning, it is not before us, and in the view we take of the case, it is not necessary for us to consider it. We express no opinion whatever, therefore, on the effect of the action of the local camp in accepting the dues, remarking however, that it appears by the uncontroverted evidence in the case, that the dues of James Baker and all assessments levied on him during his lifetime were paid in due time and to the proper officer, so that, provided the result of the trial under the charge of a felony was not a conviction within the meaning of the certificate and the by-laws of the defendant, Baker was in no way in default and was in good standing in the Order down to the day of his death. The point here in decision, therefore, is whether, within the meaning
In State v. Brown, 1 Mo. App. 449, this court, l. c. 450, treating of the effect of the death of one. of the parties to the cause, pending an appeal, says: “When either ceases to exist and is incapable of being represented by any successor, the Tase’ is at an end.”
The very term “abatement” carries this meaning. “Abatement,” says Am. and Eng. Ency., vol. 1, p. 41 (2 Ed.), “is a generic term derived from the French (ibattre, and signifies the quashing, beating down, removing or destroying of a thing.”
Applying the principle in this case and Avithout regard to tbe fact that the Supreme Court reversed and remanded the case against Baker, he then being dead, wé hold that the fact of his death having been established pending the appeal in the Supreme Court, he Avas not a “convict.” The case against him ended, ended as completely and effectually as if never instituted. Construing the language in the certificate of membership and in the by-laws of the defendant organization, we hold that the term, “shall be convicted of a crime or felony,” as there used, means lawfully convicted, convicted by a final judgment that stands and disposes of the case against the defendant beyond all power of reversal or change or annullment by any authority. The death of this man, then having the lawful-’ ness of the conviction of the lower court before the
Defendant here claims a forfeiture. Forfeitures are not favored by the courts; they will not be enforced on narrow and doubtful constructions, and no court will, unless controlled by the contract the parties have themselves made, enforce them; least of all will it allow one of the parties to a contract, in the absence of an express covenant in the contract itself to that effect, to construe a forfeiture into a contract and declare and enforce it. Organizations of like class of this defendant have been very kindly dealt with by our laws; very liberal provisions are made for them. Very many of our plain everyday people look to them for protection. These organizations should be very slow in insisting on rigid interpretations of their certificates and by-laws — more rigid than any so-called old-line companies are permitted to exact, in resisting and defeating the claims of those by whose small contributions the organization is kept alive. In this case counsel for appellant remind us that its organization is founded on social features — that it is to bring neighbors together in social relations and that it is odious that the society of a convict should be forced upon his neighbors. That is an unfortunate argument for defendant. The evidence in the case shows that this unfortunate man’s own neighbors received him and kept him in fellowship after the court and jury had found
The judgment of the circuit court is for the right party and is affirmed.