42 Ind. App. 621 | Ind. Ct. App. | 1908
“New York, September1, 1900.
To Alexander Ross, of Lafayette, Indiana,
Holder of policy No. 148,804.
This is to certify that at a meeting of the members of the Northwestern Life Assurance Company, held on September 1, 1900, at Chicago, Illinois, all living members of said company in good standing, as shown by the books of said company upon said day, were transferred to the Mutual Reserve Fund Life Association, of New York. Said association accepts into membership as of that date (September 1, 1900) all such living members, transferred as provided in said contract of transfer, and will carry out the policy contract of each of subh members in the manner provided in, and subject to, the terms and conditions of said contract of transfer, so long as said member shall on his part pay his premiums, comply-with all the terms of said contract of transfer of the above-numbered policy, of the constitution and by-laws of said association, as they now exist or may hereafter be amended, and the laws of the state of New York, it being expressly understood and provided that the terms of said contract of transfer shall at all times measure*624 and determine the extent of the obligation assumed by said association under each policy.
Mutual Reserve Fund Life Association,
Attest: Frederick A. Burnham, president.
Charles E. Camp, secretary.
N. B. — Contract of transfer makes no change in the-premium rate required or amount of lien under your policy, numbered as above, issued by the Northwestern Life Assurance Company.”
It was also alleged that on or about April 17, 1902, said Mutual Reserve Fund Life Association was reineorporated under the name of the Mutual Reserve Life Insurance Company, which “is identical with the Mutual Reserve Fund Life Association;” that the wife of the testator, the beneficiary, died before his death; that the insured “fully and completely performed all the conditions and agreements of said contract of insurance, which he was required to perform,” and that the appellee had “performed all the conditions and agreements of said policy fully and completely.” A copy, of the policy sued on in this action was made an exhibit. Other provisions of the contract need not be stated for the purpose of this case.
It is contended on behalf of the appellant that the foum dation of the action is the contract of transfer referred to in the written notice set out in the body of the complaint, and that a copy of that contract should have been filed with the complaint as an exhibit. The appellee points out that this .contract is nowhere in the complaint alleged to be in writing, and that, for the purpose of pleading, it was not necessary under the statute to file a copy. It is further contended for the appellant that if the contract in question be taken to be an oral contract, its terms or provisions should nevertheless have been stated.
The written notice of the making of.the contract of transfer was executed by the appellant and was sent by it to the insured with written directions to him to attach it, as a rider, to the policy already in his possession. When so attached it
With the motion to set aside the default, answers of the appellant to the complaint were tendered to the court, setting forth the appellant’s defense, the substance of which the brief purports to state.
Appellant’s motion is based upon §405 Burns 1908, §396 R. S. 1881, which reads as follows: ‘‘And shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect.” Appellant and its attorney had notice at least on May 17 that the return day of the summons was on June 12, and unless an appearance was entered appellant would be defaulted. It does not appear that anything occurred between May 17 and June 13 to mislead appellant or its attorney, or to cause either of them to disregard the notice which had been received. The excuse offered for the failure to appear is that appellant’s attorney, on May 17, dictated a letter to his stenographer addressed to the clerk of the court, .requesting such clerk to enter his appearance of record, and that the stenographer failed to include in the letter such request, and therefore said attorney’s appearance was not entered.
Judgment affirmed.