142 Ala. 175 | Ala. | 1904
This case was tried by the judge of the city court of Selma without a jury, and judgment ivas rendered for defendant, • and the appeal is taken from said judgment.
• Section 14 of the Acts of 1875-76, p. 390, establishing the city court of Selma is as follows, to-wit: “Be it further enacted, That in the trial of any cause at law without a jury, in addition to the questions which may be X>resented to the Supreme Court for review, under the existing laws and rules of court, either party may, by a bill of exceptions, also present for review the conclusion and judgment of the court upon the evidence; and the Supreme Court- shall review the same without any presumption in favor of the ruling of the court below on the evidence, and in case there be error, shall render such judgment in the cause as the court below should have rendered, or reverse and remand the same for further proceedings, as to the Supreme Court shall seem right.”
The bill of exceptions, not only fails to disclose any exception to the judgment of the court below, but fails to show what was the judgment. In construing provisions expressed in the same language, relating to the county court of Cleburne county, § 12, p. 808 Acts 1896-7, “Regulating proceedings in civil cases in Jefferson county,” (Acts, 1888-89, §7, p. 800), and creating the city court of Gadsden, (Acts 1890, §14, p. 1098), our court has held that the bill of exceptions must show what the conclusion and judgment of the trial court were, and unless the same are disclosed, this court is without jurisdiction to review the action of the trial
It has also been held that even if the bill of exceptions disclosed the judgment and failed to contain an exception thereto, that the ruling of the court cannot be reviewed. — Hood v. Pioneer Mining & Mfg. Co., 95 Ala. 461.
The only assignments of error, other than the correct-, ness of the finding of the court, relate to rulings on the admissibility of the evidence. Since the judgment can not be reviewed, we are forbidden by the case of Alabama Fruit Growing & Winery Association v. Garner, supra, from passing upon the rulings of the trial judge upon admissibility of the evidence. But we consider the 'doctrine therein declared upon this particular proposition, unsound, and the same is hereby overruled. This case seems to be based upon the opinion in Denson v. Gray, supra, but a careful examination of the last named case, will disclose the fact that this point was not adjudicated and there were no facts calling for the misleading expression on the subject, which doubtless- influenced the writer of Alabama Fruit Growing Winery Association v. Garner, supra.
It appears from the record that the sole issue before the trial judge, was, whether or not W. S. Monk ,the substituted beneficiary, after the death of his mother, the original beneficiary, belonged to a class capable of taking, under the rules of the order and the statute of the State of Missouri regulating said order? At the date of the issuance of the benefit certificate, the statute of Missouri, the State in which the Knights of Honor were incorporated, restricted such societies in the payment of benefits, to families, widows, orphans or other kindred dependents of deceased members. The charter of the association provides for the payment of the benefit fund to such “member or members of his family,
Section 6 of the article, provides that “upon the death of the original beneficiary designated by the member, before the decease of such member, if he shall not have procured another benefit designating other beneficiaries, m accordance with the requirements of § 4 of this article, the benefit shall be paid to the widow and children of the deceased member, if no widow to his children, if no children to his widow, and if neither widow nor children, then to his heirs. And if no person or persons be entitled by the laws of the order to receive such benefit, it shall then revert to the Widow and Orphan benefit fund.”
Plaintiff’s contention is, that upon the death of Mrs. Morey, the original beneficiary, Maj. Morey had the right to name another, but that the one so named had to belong to one of the classes enumerated in section 4 of the article, and that the defendant Monk, while a' step-son of the insured, did not come under either class of beneficiaries. That the designation of Monk as a beneficiary was invalid, and while he Avas named as such and collected the $2,000.00, being unable to take under the statute and the rules of the order, he collected this money for the benefits of the plaintiffs, who are entitled thereto as the heirs of Maj. Morey.
The defendant contends, however, that the designation was not invalid, as he was a member of the family of Maj. Morey, the insured, and therefore comes within one of the enumerated classes.
The trial judge had this question to determine and which seems to have been the sole issue, and as we are unable to review his ruling on the facts, or to question the soundness of his conclusion, we will have to pass upon the admissibility of the evidence, with reference to its application to this particular issue, and with the assumption that the conclusion of the trial judge was correct, .unless based on evidence improperly admitted.
Assignments 7, 8, 9,10, 11, 17, 19, 20, 21 and 22 relate to the admissibility of evidence relating to the family relations and surroundings, the exercise of dominion and control by Maj. Morey over the household and the ownership of the house in which they resided as one and the same' faimily. The evidence.was not only pertinent to show that defendant was a member of Maj. Morey’s family, but that Morey was the head thereof and, therefore, related to the sole issue in the case. — Niblack on Ben. Soc., §§ 194, 195; Grand Lodge v. McKinstry, 67 Mo. App. 82.
The other assignments refer to the admissibility of the application of membership, the benefit certificate to Mrs. Morey, the surrender after her death and the benefit certificate of the defendant and the payment of assessments by the insured and the proof of his death. All of this evidence related to- the history of the insurance contract and to the defendant’s right and title thereunder. As a rule the plaintiff has to rely on the strength of his title, but we do not understand such a doctrine as precluding the defendant from showing a right and title to the thing in controversy.
Affirmed.
