134 Iowa 575 | Iowa | 1907
Under these allegations in the petition, we are clearly of the opinion that the plaintiff was entitled to maintain an action at law and recover judgment, on proof of a loss within the terms of the certificate, and should not have been required to proceed in equity for the enforcement of an assess
But under the allegations of the petition in this case, including the provisions in the certificate and by-laws, incorporated by reference, the obligation of the defendant was not to mahe an assessment, and turn over the proceeds to the plaintiff, but it was to pay the amount specified from a fund raised by assessments made by the Board of Directors at its discretion; not for tire payment of a specific death loss, but for the payment of all death losses, claims for which had been approved by the board. Under such a contract, the plaintiff was entitled to a judgment at law for such amount, not exceeding $2,000, as an assessment on all members in good standing would yield. Thornburg v. Farmers’ Life Ass’n, 122 Iowa, 260; Wood v. Farmers’ Life Ass’n, 121 Iowa, 44; Hart v. National Masonic Accident Ass’n, 105 Iowa, 717. The amount of recovery is simply a matter of computation, based on the number of members and the rate of assessment. Mutual Accident Ass’n v. Barry, 131 U. S. 100, 123 (33 L. Ed. 60). The burden was on the defendant to show that such an assessment would yield less than the full amount called for by the certificate. Wood v. Farmers’ Life Ass’n, supra. If the plaintiff could establish the facts alleged in her petition she was entitled to a judgment
It is contended for appellee' that answers to interroga-tories propounded to defendant, in connection with plaintiff’s petition, showed that no fund was in the possession of defendant from which a judgment, if recovered, could be paid. Even if this were true, it would be no reason, as above indicated, why plaintiff should not have a judgment at law, if she saw fit to take it. Moreover, the answers do not satisfy us that a judgment at law would not be effectual. But, however this may be, the answers to interrogatories propounded in the pleadings are to be used as evidence. See Code, section 3604. They are not a part of the pleadings. Lane v. Krekle, 22 Iowa, 399. The motion to transfer should have been determined with reference to the pleadings,
The decree of the lower court is therefore reversed, and the case is remanded for further proceedings in harmony with this opinion.— Reversed.