Bauer v. Lodge

• Decision Date: 13 June 1885
• Citation: 1 N.E. 571,102 Ind. 262
• Parties: Bauer v. Samson Lodge, No. 32, K. of P.
• Court: Indiana Supreme Court

102 Ind. 262

1 N.E. 571

Bauer

v.Samson Lodge, No. 32, K. of P.

Supreme Court of Indiana.

Filed June 13, 1885.

Appeal from Clark circuit court.

John H. Stotsenburg and G. H. Voight, for appellant.

Howard, Read & Stannard, for appellee.

Elliott, J.

The complaint of the appellant alleges that the appellee is a corporation organized under the laws of Indiana; that it is a subordinate lodge acting under a charter granted by the grand lodge of Knights of Pythias of the state of Indiana; that, in accepting the charter, the appellee agreed to act in obedience to the enactments to the grand lodge; that section 4 of article 5 of the laws of the grand lodge is as follows: “Sec. 4. Every knight who has been in fellowship for six months, incapacitated by sickness or other disability from attending to his usual business or occupation, shall be considered a beneficial member, entitled to receive such weekly benefits as the by-laws prescribe, provided the minimum sum of one dollar per week must be paid through said period of probation, and further provided that his disability is not brought on by immoral conduct, and that he is in good standing; but any lodge may, by its by-laws, provide that no benefits shall be paid for the first week's sickness or disability.” That the appellee enacted a by-law prescribing that members who had been in fellowship six months when incapacitated by illness should receive five dollars per week as benefits; that appellanthas been a member of the defendant lodge, in good standing, since the first day of March, 1880, and, as such, entitled to all the rights and benefits of a member; that on the ninth of March, 1881, he became ill, and was thereby incapacitated from attending to his usual business, and that his illness was not brought on by immoral conduct.

The appellant answered in abatement. The allegations of the plea are substantially these: That the defendant is a subordinate lodge of the grand lodge of the Knights of Pythias of Indiana. That the appellant when he became a member pledged himself, by signing a written petition, that he would conform to the constitution, by-laws, and regulations of the defendant. That among the rules and regulations of the supreme lodge of the order are the following provisions:

Article 1, § 1. “The supreme lodge is the source of all true and legitimate authority in the order of Knights of Pythias, wheresoever established. It possesses original and exclusive jurisdiction and power (1) to establish the order in states, districts, territories, provinces, or countries where the same has not been ingrafted; (2) to charter grand lodges and define the territorial extent of their jurisdiction; (3) to hear and determine all appeals from grand and subordinate lodges when the same are properly brought before it, in accordance with the regulations of the order, and to provide by legislation for the enforcement of its decisions.” Art. 7, § 1. “Grand lodges exist by virtue of a charter or dispensation issued by authority of the supreme lodge. They shall conform to the regulations prescribed by the supreme lodge in accordance with this constitution, and shall, subject to the provisions hereof and right of appeal, have exclusive original jurisdiction over all subordinate lodges within their territorial limits, and over the members attached to the same.” Art. 7, § 3. “Each grand lodge shall adopt a constitution for its own government, and also a constitution for its subordinates, which constitutions shall be in accordance with the provisions of this constitution and the laws made in pursuance hereof.”

-That more than 10 years since, the supreme lodge issued a charter to the grand lodge of Indiana, and that grand lodge afterwards chartered the defendant as a subordinate lodge of its jurisdiction. That in the constitution and laws of the grand lodge of Indiana are the following provisions: Sec. 2. “This grand lodge shall have jurisdiction over all lodges of Knights of Pythias within the state of Indiana.” Sec. 3: “It possesses the right and power (1) of granting charters; (2) of suspending or taking away the same for proper cause; (3) of receiving and hearing all appeals, and of redressing grievances arising in lodges under its jurisdiction; (4) of enacting by-laws for its government and support, provided the same are not in violation of the laws of the supreme lodge.” Art. 5, § 8: “After the installation of officers the grand chancellor shall appoint the following committees, to serve one year: (1) A committee of appeals and grievances; (2) a committee of laws and supervision; (3) a committee of subordinate lodge constitution and by-laws; (4) a committee on state of the order; (5) a committee on finance and accounts; (6) a committee on subordinate lodge returns; (7) a committee on credentials;(8) a committee on mileage and per diem. Each committee shall consist of three members, except the committee on appeals and grievances, which shall consist of five members.” Art. 9, § 4: “The committee on appeals and grievances shall hear all appeals and grievances from lodges or members of lodges referred to them by grand lodge or grand chancellor, and report their decisions with the utmost dispatch to the grand lodge or grand chancellor during its recess; but no member of this committee shall serve on any case of appeal from the lodge of which he is a member.” That these provisions of the constitution and by-laws of the order have been in force since the organization of the defendant and are still in force. That these provisions require a member aggrieved by the decision of a subordinate lodge to appeal, first, to the grand lodge of the state, and then, if dissatisfied, to the supreme lodge. That according to the usages and customs of the order that have existed in said order since the time “whereof the memory of man knoweth not to the contrary, grievances in the denial of benefits have always been redressed by subordinate lodges or on appeal.” That the plaintiff has not appealed from the decision of the lodge denying him benefits.

Prior to filing this plea the appellee demurred to the complaint, alleging for cause that it did not state facts sufficient to constitute a cause of action; and it is contended by the appellant that this precludes the appellee from pleading in abatement, and upon his contention arises the first question. It is important to keep in mind the fact that the plea does not present the question of the jurisdiction of the person of the defendant, but presents the question of the right to maintain the action. The question, therefore, is very different from that which would arise if the defendant had demurred and then attempted to question the jurisdiction of the court over its person. As a general rule, appearance waives the question of jurisdiction of the person; but here the defendant submits to the jurisdiction, and contests the right of the plaintiff to maintain the action. It concedes jurisdiction of the person, but affirms that the action must abate because the plaintiff has not taken such steps as enabled him to prosecute it.

Appellant's counsel assume that a demurrer is a plea in bar, and, proceeding upon this assumption, affirm that the case is within the rule that after pleading in bar the defendant cannot plead in abatement. The validity of this argument depends entirely upon the correctness of the assumption on which it rests. This assumption cannot be made good. Our statute expressly recognizes the difference between demurrers and answers, and the common law quite as fully recognized the difference between pleas and demurrers. In their nature they are essentially different: a demurrer presents an issue of law, while an answer presents an issue of fact. Gould says: “But a demurrer to the declaration is not classed among pleas to the action, not only because it may be taken as well to any part of the pleadings as to the declaration, but also because it neither affirms nor denies any matter of fact, and is, therefore, not regarded strictly as a plea of any class, but rather as an excuse for not pleading.” Gould, Pl. c. 2, § 43.

Error cannot be successfully assigned upon a ruling denying a motion to strike out a part of a complaint. One who becomes a member of an organization such as the Knights of Pythias is chargeable with knowledge of its laws and rules, and is bound by them. He cannot be...