89 Neb. 1 | Neb. | 1911
This action was commenced in the district court for Lancaster county, and is upon a benefit certificate for the sum of $3,000, issued upon the life of Harvey Lillie, payable to Lena M. Lillie, his wife, upon his death. The petition is in the usual form, and its averments need not be here specifically noticed, except to say that it is alleged that defendant is a fraternal beneficiary society, incorporated and doing business under and by virtue of the laws of the state of Illinois, with its principal place of business in the city of Rock Island, in said state, and author-^ ized to transact business in Nebraska. A summons was issued and returned by the sheriff of Lancaster county as having been served upon the defendant “by delivering
The defendant filed a paper, of which the following is a copy, omitting the caption: “Comes now the defend-, ant appearing specially, and for the purpose of this motion only, and objects to the jurisdiction of the court over the defendant and also over the subject matter of the suit for the following reasons: First. Because plaintiff’s petition fails to show a legal capacity to bring or maintain said suit. Second. Because plaintiff’s petition fails to show that she has any legal capacity to bring or maintain said suit in Lancaster county, Nebraska. Third. Because plaintiff’s petition fails to show that the contract sued upon is one enforceable at law. Fourth. Because plaintiff’s petition fails to show that she has complied with the statutory provisions of this state to entitle her to prosecute said action. Fifth. Because the court has acquired no jurisdiction over the defendant by reason of defects shown on the face of the petition.”
This objection to the jurisdiction was overruled, and defendant’s exception noted. It may be doubted if this was in fact and in law a special appearance for the sole purpose of challenging the jurisdiction of the court over the person of defendant. It will be noted that the challenge includes the contention that the court has no jurisdiction of the subject matter of the suit.
In Perrine v. Knights Templar’s & Masons’ Life Indemnity Co., 71 Neb. 273, we held on rehearing (quoting the syllabus) that “an appearance for the purpose of objecting to the jurisdiction of the court of the subject matter of the action, whether by motion or formal plead
It will also be noted that the objections presented in the first and second grounds of challenge are practically, if not strictly, the grounds of demurrer contained in section 94 of the code. The paper filed constituted a general appearance in the case. Again at a later date defendant filed a demurrer to the petition, the second ground of which was that “the court has no jurisdiction of the subject matter of the action,” and the third that “the petition does not state facts sufficient to constitute a cause of action.” This, also, was clearly a general appearance, notwithstanding the demurrer contained the statement that it was filed “without any intention of waiving its rights to insist upon the special appearance overruled by this court.” The simple fact of the presentation of the questions was a waiver of a special appearance, had one been made. On a still later date defendant filed a motion for a more specific statement of the petition, and that the court require certain facts to be set out therein. This, also, was a general appearance. Cropsey v. Wiggerihorn, 3 Neb. 108; Crowell v. Galloway, 3 Neb. 215.
It is insisted by defendant that, under the provisions of section 96, ch. 43, Comp. St. 1909, an action of this kind cannot, without the consent of a defendant, be maintained in any court except where some of the conditions prescribed in that section exist. The section is as MIoavs: “Such society may be sued in any county in which is kept their principal place of business or in which the beneficiary contract was made or in which the death of the member occurred, or in the county of the residence of such deceased member; but actions to recover old ago,
In tbe brief of defendant it is said: “We will not contend that tbe action is not transitory, nor will we contend that the district court of Lancaster county could not have jurisdiction of tbe subject matter of (by) consent of tbe parties or waiver of defendant as to jurisdiction.” It will appear from this that it is not contended that where consent is given, or ratber where no objection is made, tbe judgment would be void, but of full force and validity. In effect tbe contention is that, where none of tbe condiditions named in the section exists, it will depend upon tbe election of a defendant as to jurisdiction of tbe court to bear and determine tbe case upon its merits. If this should be held to be tbe true effect of tbe statute, it would rest with defendant to give or refuse to give tbe district court jurisdiction in all cases where none of tbe specified conditions exist. Suppose a beneficiary resided in this state, tbe assured resided and died in another state, tbe defendant, a foreign corporation, bad no principal place of business in this state, and tbe contract was made in a foreign state, tbe beneficiary would find tbe doors of all tbe courts of tbe state closed against her, or him, and no suit could be maintained in this state in any court, except by virtue of tbe consent and. permission of tbe defendant. We cannot give such construction to tbe section under consideration. Just what tbe purpose of its enactment was, whether to add to and extend tbe jurisdiction of courts, or to make certain tbe local jurisdiction where any one of tbe conditions exist, we need not now inquire. Tbe district court is a court of general common law jurisdiction, and tbe statute has by general law provided methods of acquiring jurisdiction over tbe person of foreign companies of tbe class to which defendant belongs, and it will not do to say that by tbe section under consideration tbe method of acquiring jurisdiction by general law is destroyed and tbe procedure limited to cases where tbe provisions above referred to exist. Such
The answer, in addition to the presentation of the question of jurisdiction, being practically the same as the motion and demurrer, consisted of certain admissions and a general denial of unadmitted averments, and set out certain clauses of the application and benefit certificate, and alleged that plaintiff, in violation of the express terms of the certificate, had caused the death of the member by'the wilful, intentional and unlawful act of her, the beneficiary —in short, that she had murdered him. The fact of her arrest, prosecution and conviction of his murder, the verdict of the jury finding her guilty of murder in the first degree, and her sentence to imprisonment in the penitentiary for life are set out by copy of the proceedings and judgment. Plaintiff moved the court to strike out that part of the answer setting out her trial and conviction. The motion was sustained, but no exception was taken to the order. The order did not include the allegation that plaintiff had murdered the assured, leaving that issue to be tried. Plaintiff replied by a general denial. A large number of witnesses were sworn, chiefly upon the issue thus presented, forming a bill of exceptions of near 3,300 pages of typewritten matter. This evidence became material by reason of there being a clause in the benefit certificate that, if the death of the member was caused “by the hands of his beneficiary, * * * except by accident,” the certificate should become null and void.
In addition to the oral testimony in support of the de
The question then arises: Was-it competent as substantive evidence in this suit upon the benefit certificate to prove that plaintiff had, in fact, murdered her husband, the assured? The answer must be that it was clearly not admissible. In Wisnieski v. Vanek, 5 Neb. (Unof.) 512, it is held that where a defendant in a criminal prosecution enters a plea of guilty, and judgment is •rendered thereon, proof of the plea may be received in a civil suit against him for damages growing out of the same transaction as an admission or confession of the act charged, but that it is not conclusive of the fact and may be controverted as any other open question; that it is not the judgment itself that is admitted against- him. The record offered shows that there was a jury trial of the criminal prosecution, and therefore there was no plea of guilty. It is fundamental and elementary that in a civil suit, where the defense is that plaintiff had by a
Instruction numbered 9 reminded the jury of statements and references to the alleged conviction of plaintiff in the district court for Butler county, and directed them to pay no attention to the result of that prosecution, that it had nothing to do with their verdict, and they should disregard all such statements and allusions. There was no error in the instruction. The fact of that conviction had no place in the trial of this cause.
It is said in defendant’s brief that the court erred in permitting plaintiff to withdraw testimony of good character, but there is no indication as to where in the bill of exceptions the testimony or ruling can be found, as required by clause “h” of rule 9 of this court, and we will have to be excused from searching the four volumes of the bill of exceptions for that specific ruling.
The question of the murder of the assured by plaintiff, the beneficiary, was thoroughly and quite exhaustively tried by the introduction of oral testimony, and all the facts and circumstances in connection with the death of the decedent appear to have been fully investigated. Plaintiff was a witness in her own behalf and gave her version of the death of her husband, which, if true, would demonstrate that she was not guilty of his murder. She was thoroughly and searchingly cross-examined. The whole subject was submitted to the jury, and their finding on the facts must be accepted as binding upon this court.
Complaint is made of the instructions given the jury by the court. They have been examined, and appear to have been given in accordance with the views herein above expressed, and do not require specific notice here. The main question of fact upon which the case depended was for the jury. We detect no reversible error by the district court.
The judgment is
Affirmed.
