64 Neb. 105 | Neb. | 1902
Plaintiff in error and defendant below in this case complains “that the entire course pursued by .the district court in this case was one of arbitrary abuse of authority, by which the plaintiff in error was unlawfully deprived of every and any opportunity to be heard upon the merits of the case.” It certainly seems that the defendant was not permitted to be heard upon the merits of his case. It remains to be ascertained whether there were any merits to be examined. This is an action upon a policy of life insurance, and to plaintiff’s petition below a motion was interposed to require the plaintiff to make her petition more certain by setting out the date of the delivery of the policy and the insured’s condition of health at that time. This policy contained .the following clause: “This policy takes effect and becomes binding upon the association only upon the actual delivery thereof to the applicant whthe in life and in good health, and the payment in cash to the association of the first annual premium or installment thereof whthe in good health.” The petition alleges that July 1, 1897, the deceased “took out a policy of life insurance in the defendant association.” As the policy expressly provided that it should have no effect until delivery, this was
In tendering an answer and asking leave to fthe it on June 3, the defendant must be held to have waived errors of form and procedure occurring prior to that time. The real question presented here is whether there was an abuse of discretion in refusing to allow defendant to fthe the answer presented. The only issue tendered by the answer was that the action on part of plaintiff was prematurely brought. The policy provides that the association shall within ninety days after receipt of evidence satisfactory to it of the death of the insured, pay to the beneficiary said sum insured, after deducting the balance of the current year’s premiums, if any, and any indebtedness of the insured or beneficiary to the association. This is the only provision as to any delay. It is true that there are further provisions that it shall be the duty of the beneficiary to notify the association of the death, in writing, and' furnish as soon as possible, on the blanks provided by the association, such proofs and affidavits as the executive committee may require in order to satisfactorily establish the facts as to the life and death of the insured and the legality of the claim against the association; and all matter so furnished to the association may at its option be used by it as evidence of the facts therein stated. This provision, however, seems to be in no way connected with the ninety-day clause by its terms, nor does it seem that it should be by its meaning. No complaint is made of any lack of proof of the death of the insured. The fact of such death is not denied, and is impliedly admitted in the answer. The ninety days were apparently provided for the purpose of enabling the defendant to procure these other additional proofs and showing, which it is made the duty of the beneficiary to furnish. The answer shows that after receiving plaintiff’s proofs on July 13, they were retained without objection until October 13, ninety-two days, and then returned, with a requirement of affidavits from other physicians who had attended the deceased during the last year
It remains, then, only to consider whether or not there was any prejudicial error in taking proofs and entering judgment when the motion for leave to fthe was overruled, or any abuse of discretion in so doing. Section 482 of the Code provides:
“If the taking of an account, or the proof of a fact, or the assessment of damages, be necessary to enable the court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the court may, with the assent of the party not in default, take the account, hear the proof, or assess the damages; or may, with the like assent, refer the same to a referee, master, or commissioner, or may direct the same to be ascertained or assessed by a jury,” etc.
In this case, an issue of law had Certainly been made and decided, and, on the overruling of the application to ansiver, the defendant was in default, and it was competent for the court to proceed to take the proofs and assess the damages. The complaint that the proceeding was without notice to the defendant is clearly without merit, as it was taken on the occasion of passing on defendant’s own motion for leave to fthe, and in his presence. If, as we conclude, there was no error in refusing permission to fthe this answer, it seems equally clear that there was no error in proceeding, at the request of the plaintiff, and on plaintiff’s Avaiving a jury, to assess the damages. The proof tendered was sufficient to warrant the action of the court, and it is recommended that the judgment be affirmed.
Affirmed.