Christie v. Iowa Life Ins. Co.

• Decision Date: 14 April 1900
• Citation: 82 N.W. 499,111 Iowa 177
• Parties: CHRISTIE v. IOWA LIFE INS. CO.
• Court: Iowa Supreme Court

111 Iowa 177

82 N.W. 499

CHRISTIE

v.IOWA LIFE INS. CO.

Supreme Court of Iowa.

April 14, 1900.

Appeal from district court, Blackhawk county; F. C. Platt, Judge.

Action on a certificate of a mutual insurance company. The case has been here twice before. 82 Iowa, 360, 48 N. W. 94;104 Iowa, 707, 74 N. W. 697. Decree on supplemental petition as prayed, and defendant appeals. Affirmed.Alford & Gates, for appellant.

Boies & Boies, for appellee.

LADD, J.

This suit was begun July 27, 1894, and a decree entered at the September, 1895, term, directing an assessment of the members of the association at the date of Christie's death, September 7, 1886, at schedule rates, and ordering the payment to plaintiff of the proceeds thereof, “not exceeding $2,500 and the interest thereon at six per cent. from the 10th of November, 1898 * * * (such payment to be made within 60 days after the date of filing such decree),” and also ordering “that said cause stand continued for such other and further orders and proceedings as may be necessary hereon to protect and enforce the legal and equitable rights of the plaintiff.” The decree, with the exception of the allowance of interest, and the rejection of judgments pleaded in the counterclaim, was approved by this court December 17, 1897, and procedendo filed in the district court April 1st, following. See Pray v. Security Co., 104 Iowa, 117, 73 N. W. 485. On the 11th day of June, 1898, the plaintiff filed a supplemental petition, reciting in detail the course of litigation, and alleging that the proceeds of an assessment had not been paid to plaintiff or the clerk of court; that the defendant had so changed its plan of business that indemnity was no longer raised by assessment; that it had a large amount of property subject to execution; that had an assessment been made within three months after the proofs of loss were waived, December 20, 1886, at which time the levy of assessment was demanded of the proper officer and refused, the full amount of the certificate would have been realized; that unless judgment was rendered for the amount of the certificate, with interest, plaintiff would be remediless, and this relief was prayed. The answer averred that the former decree was final; that a proper assessment on all members in good standing, who were such September 7, 1886, had been made, and $78.58 realized therefrom; denied that the full amount claimed would have been produced, had an assessment been made December 20, 1886; and imputed laches to plaintiff in not pressing her action until most of the certificates in defendant company had expired by lapse of time. It also declared that the supplemental petition contained no more than a restatement of issues adjudicated, and that it had been improperly filed.

1. The former decision was made in vacation, with an agreement that a decree might then be entered. The trial judge filed with the clerk a finding of facts, with his conclusions of law, ending with the direction that judgment be entered. Whether this was sufficient in form as a decree need not be considered. It was never spread upon the records of court, and for this reason never became such. Callanan v. Votruba, 104 Iowa, 672, 74 N. W. 13;In re Weber, 4 N. D. 119, 59 N. W. 523, 28 L. R. A. 621, and note. The record shows a decree which included these findings and conclusions, and in no way inconsistent therewith. Even were it conceded not to follow the written directions of the judge, it must be treated, in the absence of any showing to the contrary, as truly evidencing the decision of the court; for a change in the views of the judge will be presumed, rather than that the record is other than verity. As the cause, after ordering the assessments of members, was expressly continued for such relief as might prove essential to the protection of plaintiff's rights, and the matters now involved were not determined, the decree was a final adjudication only as to the issues decided.

2. The practice of filing a supplemental petition in a case like this was approved in Newman v. Association, 76 Iowa, 65, 40 N. W. 87, 1 L. R. A. 659, where its necessity, in order to reap the fruits of such litigation, is fully illustrated. Resort must be had in the first place to an action in mandamus to compel the levy of an assessment. Bailey v. Association, 71 Iowa, 691, 27 N. W. 770;Rainsbarger v. Association, 72 Iowa, 192, 33 N. W. 626;Tobin v. Society, 72 Iowa, 261, 33 N. W. 663. It was only after proceedings under the original decree had been exhausted that plaintiff was charged with knowledge of their failure, and given the right to demand the more drastic remedy sought in the supplemental petition. This was not a restatement of the issues, as contended by appellant, but, rather, a recital of the history of the litigation, together with the averments that but a trifling sum had been made available by that assessment under the decree; that defendant had ceased to raise indemnities by assessment in 1887; and that, had the assessment been levied on all members by the officers of the company within 90 days after proofs were waived, the full amount of the certificate would have been realized. These last two allegations were contained in the original petition, but the remedy granted in the decree was not based thereon. Code, § 3641, expressly declares that filing a supplemental petition shall not waive former pleadings. Restating them in the new pleading was a matter of convenience. All other averments were of matters transpiring after the beginning of the action, and properly came within the provision of the above section. The cause of action was the same as that originally stated. The...