No. 19,810 | Ind. | May 20, 1902
The appellees brought this action against appellant in the court below upon a policy of insurance or benefit certificate issued by appellant to appellees, insuring the life of one Frank Noyes. On the 14th day of
As the appearance of appellant was in form special, -and for the sole purpose of the motion, the court was authorized to overrule said motion, if it bad theretofore obtained jurisdiction over the person of the appellant. It is upon the theory that there was no such jurisdiction, and not on the theory that the court should have relieved it on the ground of inadvertence, that appellant’s counsel now contend that said motion should have been sustained.
The service of process upon which appellees rely to support their judgment was had upon the chief officers, including the consul and the clerk, of a local lodge of said appellant, designated by it as local camp number 4:189. It appears from said motion that the appellant is a foreign fraternal and beneficial corporation; that it has a system of local camps, possessing a ritualistic form of work, and a representative form of government; that it has two classes of members, — social and beneficial; that, if at person becomes a beneficial member of said society, be is required to make application for such membership to one of its local camps; that, if such camp approves the application, it is forwarded to the supreme officers of said order, and if they approve it, a benefit certificate, such as the one sued on, is transmitted to the local camp, and upon the applicant being initiated into said camp the certificate is. countersigned by the consul and clerk of the local camp, and the applicant thereupon becomes entitled to said certificate, which authorizes the beneficiary therein named to recover the amount
It is contended by appellant’s counsel, notwithstanding such omission, that it was not competent to serve it with process under the provisions of the code, because service upon the Auditor of State would have been a sufficient service as against appellant, even without the written consent being deposited, for the reason that the society would have been estopped to deny the validity of such service, having done business in the State. The cases of Ehrman v. Teutonia Ins. Co., 1 McCrary 123, Knapp v. National, etc., Ins. Co., 30 F. 607" court="None" date_filed="1887-03-22" href="https://app.midpage.ai/document/fergus-8310826?utm_source=webapp" opinion_id="8310826">30 Fed. 607, and Hagerman v. Empire Slate Co., 97 Pa. St. 534, are cited in support of the proposition as to an estoppel. The claim of an estoppel in such cases has a basis in sound reason where the judgment under attack is based on such service, but where the service was not had on the Auditor of State the society cannot be heard to insist that service shall be had upon it under a statute that it has disregarded. The requirement of §20 of said act, that service shall be had upon the Auditor of State, only applies, by
We think that, under the circumstances of this ease, the service that was had under the provisions of the code was sufficient. §318 Burns 1901; Supreme Council, etc., v. Boyle, 15 Ind. App. 312" court="Ind. Ct. App." date_filed="1896-05-18" href="https://app.midpage.ai/document/citizens-street-railroad-v-willoeby-7061437?utm_source=webapp" opinion_id="7061437">15 Ind. App. 312; Funk v. Anglo-American Ins. Co., 27 F. 336" court="None" date_filed="1886-04-22" href="https://app.midpage.ai/document/funk-v-anglo-american-ins-8310591?utm_source=webapp" opinion_id="8310591">27 Fed. 336; Clews v. Rockford, etc., R. Co., 19 How. Pr., 117. See as to service upon foreign corporations generally, note to Foster v. Betcher Lumber Co., 5 S. Dak. 57, 58 N.W. 9" court="S.D." date_filed="1894-03-03" href="https://app.midpage.ai/document/foster-v-charles-betcher-lumber-co-6683697?utm_source=webapp" opinion_id="6683697">58 N. W. 9, as reported in 23 L. R. A. 490, 49 Am. St. 859.
The appellant, by a proper assignment of error, presents the question as to whether the complaint states facts sufficient to constitute a cause of action. It is claimed by appellant’s counsel that, in view of the provisions of the certificate sued on, the complaint should have alleged that said Frank Noyes did not die “as a result of any means or act, which, had such means or act been used or done by him while in the possession of all his natural faculties unimpaired, would be deemed self-destruction.” The: complaint alleges, among other things, that the assured “fully paid all dues and assessments levied and charged against him on account of his said membership and benefit certificate aforesaid, and kept, did, and performed all the conditions, rules, regulations and requirements upon his part with said defendant.” If the clause in the certificate'relative to death by self-destruction is to be* regarded as a condition precedent, the above general averments of performance were sufficient, under the code, in view of the provisions of the certificate. §373 Burns 1901. The certificate sued on contains a general engagement to pay the beneficiaries in case of the death of said Frank Noyes while a beneficial member of the society in good standing. In a subsequent portion of the instrument it is provided that it “is issued and accepted only upon the following express warranties, conditions, and agreements:
There is no error in the record.
Judgment affirmed.