148 Ind. 83 | Ind. | 1897
Appellants brought this action as policy holders in a mutual life insurance company, organized under the laws of this State, to enjoin said company from making an assessment upon its members, including appellees, and paying to appellants the amount of two policies upon the life of one Mitchell, said appellants having no insurable interest in his life, and said policy having been issued without his knowledge or consent. Section 4902, Bums’ R. S. 1894 (Acts 1883, p. 203, section 4). A demurer to the amended complaint for want of facts was overruled. Answers in two paragraphs were filed, the first paragraph being a general denial and the second a plea in abatement. Appellees’ demurrer to the plea in abatement was sustained. A trial of the cause by the court resulted in a finding and judgment in favor of appellees.
We think these allegations are sufficient to show that appellees were members of said company, and had such interest as entitled them to bring this action. It was not necessary to set .forth all the steps taken by appellees to become members of said company, nor to state the amount of the membership fees or assessments paid by them.
Appellants cite Elsey v. Odd Fellows Mutual Relief Association, 142 Mass. 224, 7 N. E. 844, to sustain tie proposition that a member of an assessment insurance company cannot maintain a suit-to enjoin the company from paying a policy to a person who claims to be a beneficiary thereunder. In the case cited the company was organized under a statute which provides that such associations may “for the purpose of assisting the widows, orphans, or other persons dependent upon deceased members, provide in its by-laws for the payment by each member of a fixed sum, to be held by such association until the death of a member occurs, and then to be forthwith paid to the person or persons entitled thereto.” In said case one Wetmore, in his application for membership, designated his wife. Ad die E. Wetmore, as the person to whom the benefit was to be paid upon his death. Afterwards he attempted to change the designation from his wife to his mother, Abagail Wetmore. The action was brought by one Elsey, a member of said association, and Addie E. Wetmore, the wife, was joined with him as co-plaintiff, to enjoin the payment to Abagail Wetmore, the mother, and the court held that the assignment to the mother was invalid, and the original designation of the wife remained in force. The court also said that the plaintiff, Elsey had no interest in the fund, and
It is next insisted by appellants “that the statement in the complaint that ‘the said society is about to lay assessments upon its members, including plaintiffs, for the purpose of paying said claim, and will do so unless restrained by this court,’ is not sufficient to call for interposition of the strong arm of equity.” The following allegations in the complaint are also to be considered in determining this question. “The company has accepted the proofs of loss and claim made
■ Appellees each had separate and independent policies in said insurance company, but the object of the suit was to enforce a common interest, and they therefore had the right to join as plaintiffs in bringing this action. First Nat'l Bank v. Sarlls, 129 Ind. 201; Town of Sullivan v. Phillips, 110 Ind. 320; Tate v. Ohio, etc., R. R. Co., 10 Ind. 174, and cases cited; Kipper v. Glancey, 2 Blackf. 356; Ruffing v. Tilton, 12 Ind. 259; Strong v. Taylor School Tp., 79 Ind. 208; Field v. Holzman, 93 Ind. 205; Thorton’s Ind. Prac. Code, p. 24, notes 9, 12, 14, 15.
Under our code of procedure an answer in abatement cannot be pleaded with an answer in bar, but. must precede it, and the issue must be tried first and separately. Section 368, Burns’ R. S. 1894 (365, R. S. 1881); Fields. Malone, 102 Ind. 251; Glidden v.Henry, 104 Ind. 278; Brink v. Reid, 122 Ind. 257; Watts v. Sweeney, 127 Ind. 116.
The answer in abatement was filed with the general denial, an answer in bar, and was subject to be stricken out on motion, the error therefore, if any, in sustaining a demurrer thereto was harmless. Watts v. Sweeney, supra.
Finding no available error in the record the judgment is affirmed.