30 Ill. App. 98 | Ill. App. Ct. | 1889
The Ancient Order of United Workmen is a mutual benevolent society, with local lodges, grand lodges for States, and a supreme lodge of the United States, and it is probably true, as appellants urge, that if appellee has any cause of action, it is solely against the Grand Lodge of the State, and there is a misjoinder of defendants.
A complete answer to this objection, however, is that the beneficiary certificate to Edward Zulhke, late husband of appellee, and at his death payable to her, is declared upon as the instrument, in writing, of all the appellants, and there was no denial of the execution of it by either of them, by plea, verified by affidavit. Sec. 33, Practice Act, 1872; Ill. Mut. Ins. Co. v. Marseilles Mfg. Co., 1 Gilm. 236; P. & O. R. R. v. Neill, 16 Ill. 269; Home Flax Co. v. Beebe, 48 Ill. 138.
These are all cases of corporation defendants, and the appearance of the appellants, by names importing corporations, are admissions by them severally that they are corporations. U. S. Ex. Co. v. Bedbury, 34 Ill. 459. Unless, therefore, as a legal proposition which the court must hold without evidence of the corporate powers of the appellants respectively, they could not be bound by the instrument as it was declared upon, they were estopped to deny its execution. It would be a violation of the rule established by the statute, and cases cited, to permit the appellants, by evidence of any kind, to deny the execution of its instrument, whether such evidence related either to their act, or their competency to act. This question is not affected by the stipulation in regard to pleadings. After a good deal of pleading (without oath) and demurring, the parties agreed that, under the general issue, all defenses that could be properly specially pleaded should be admitted. It is clear that they only intended that the general issue should be of the same benefit to the appellants as the special pleas which they had so laboriously and unnecessarily wasted time upon. The general issue was sufficient, if they did not propose to deny the execution of the instrument, to let in all their defense. 1 Ch. Pl. 492.
And if they wished so to deny, verifying the plea would have been enough for that purpose. Hinton v. Husbands, 3 Scam. 187; Vance v. Funk, 2 Scam. 263; Davis v. Scarritt, 17 Ill. 202.
The only other defense of the appellants, although by them much subdivided, grows out of the expulsion of Edward Zulilke from the order. The facts upon the matter are clear. The Wicker Park Lodge, to which he belonged, met weekly. On the 1st of August, 1884, a committee of three preferred, before a committee of five (all members of the lodge), charges against Zuhlke. The committee had several meetings, at which Zuhlke was present. The committee reported to a meeting of the lodge held on the 15th of the same month, at which Zuhlke was not, nor was he notified to be, present. Vet the lodge proceeded, upon reading the report and testimony, by ballot, to expel him. There was no provision in the rules of the order requiring notice to him to appear at the meeting, but the general rules of justice forbid that a party be condemned without opportunity for defense. See cases cited in notes to Sec. 101, Bacon Friendly Soc. & Life Ins. Nor did the rules fix the time when the committee should report, so that he could know, without notice, when the report would be presented. The rule required it to be done “at as early date as practicable.”
That he thought he ought to be expelled, and expected it— that he knew of it immediately, and of his right to appeal, and said he was satisfied, may all be true, and still the expulsion, without notice or appearance, is void.
Being void, no appeal was necessary to avoid any effect of it, for it had none. These views dispose of the case.
Judgment affii'med.
