84 Ill. App. 220 | Ill. App. Ct. | 1899
delivered the opinion of the court.
Appellant has assigned a number of errors on the record, which we will notice in their order.
The first error assigned challenges the ruling of the court in sustaining appellee’s motion to strike the plea in abatement from the files. The record is in no condition to raise the question as to whether the ruling of the court was correct or otherwise. It is true, several lengthy affidavits relating to the pleas have been copied by the clerk in transcribing the record, but they are no part of the record, since they are not preserved by any bill of exceptions, and they could have become a part of the record only by having been so preserved. The same rule obtains as to the motion itself.
In the absence of a bill of exceptions preserving the evidence and the rulings of the court, the presumption is it ruled correctly. Besides, after appellant had filed its first plea in abatement, it asked and obtained leave to plead again. This was a waiver of the plea in abatement. Leave to plead meant that the defendant should answer in some way to the merits of the case, and this could only be done by demurrer to the declaration, or by pleading in bar of the action. The error is not wTell assigned.
The second errror challenges the ruling of the court in sustaining plaintiff’s demurrer to defendant’s special plea in bar. Tne demurrer was general and special. Appellant’s counsel say in regard to this error : “ After having stricken the plea in abatement from the files it was error to sustain demurrer to plea in bar settingup the same matter.” Ao reason is attempted to be given why the matter set up in the plea, if proper to have been considered by the jury, could not have been given in evidence, under the plea of general issue, and as we are unable to discover any, the judgment of the court sustaining the demurrer must be held to have been correct.
The third assignment of error challenges plaintiff’s three instructions. The first instruction" told the jury that section 48 of the constitution of the order, providing for an appeal from the decision of the officers of the order rejecting the claim, was permissive only, and that plaintiff was not bound to appeal to the grand lodge before bringing suit.
Section 48 of the constitution provides that when a claim is rejected by the officers of the order the claimant “ may appeal to the grand lodge.” ISTo obligation is imposed on the claimant to appeal, and he forfeits nothing if he omits to do so. Besides, the claim is against the lodge, and the appeal is given to the lodge, thus giving it the right to sit in judgment on its own case. Under such circumstances it would have to clearly appear that the claimant had agreed to submit his rights twice to interested umpires before a court would require him to do it as a condition to his right to sue in a court of law.
It may not be out of place to inquire why, if a claimant was bound to appeal from the decision of the officers of the lodge before he could maintain a suit for his claim, was it necessary to enact further laws, such as were set up in the plea in abatement ?
In the case of People ex rel. v. Order of Foresters, 162 Ill. 78, the court said:
‘‘Where the controversy is concerning the discipline or policy or doctrine of the order or fraternity, the member must resort to the method of procedure prescribed by the association, including the remedy by appeal, before invoking the power of the courts. But it is otherwise where a member claims money due from the society on its contract, or where the beneficiary of a deceased member claims money due on its contract of insurance; in such case the right to resort to the courts to coerce payment will not be .abridged by the right of appeal from a lower to a higher tribunal of the society as conferred by its laws and rules.”
There was no error in giving the instruction. A. O. U.W. v. Grogan, 44 Ill. App. Ill.
The objection to the second instruction is substantially the same as to the first, and it was properly given.
The third instruction told the jury in effect that if they found for the plaintiff they would allow him the amount of the certificate and interest at five per cent from the date of the rejection of the claim, and the total amount was fixed in the instruction. The certificate was an instrument in writing, and there was no dispute as to the date of the rejection of the claim, and it is not claimed that the interest computed by the court was too much, and while it would have been the better practice to have left the computation of the interest to the jury, the error, if it was such, did no harm and is not sufficient ground for reversing the judgment.
• The refusal of the court to give defendant’s instruction No. 14 is also claimed to be error. The substance of it was that the plaintiff could not maintain a suit on his claim until it was submitted to and approved by the officers of the lodge named in section 48 of the constitution.
From what has already been said in regard to plaintiff’s first and second instructions, it follows that the instruction was properly refused.
Error is also assigned on the rulings of the court in overruling defendant’s objections to certain evidence introduced by plaintiff. We have examined the evidence and are of the opinion that no material error was committed by its admission.
The final error insisted upon is that the verdict was contrary to the weight of the evidence and therefore the court should have sustained defendant’s motion for a new trial. The verdict can not be said to have been the effect of passion or prejudice. Plaintiff’s evidence was quite sufficient to sustain the verdict, and we can not say the jury were not justified by the evidence in finding as they did, and the judgment is affirmed.
