Gibson v. Iowa Legion of Honor

• Decision Date: 17 October 1916
• Docket Number: 29922
• Citation: Gibson v. Iowa Legion of Honor, 178 Iowa 1156, 159 N.W. 639 (Iowa 1916)
• Parties: LUTIE GIBSON et al., Appellees, v. IOWA LEGION OF HONOR, Appellant
• Court: Iowa Supreme Court

159 N.W. 639

178 Iowa 1156

LUTIE GIBSON et al., Appellees, v. IOWA LEGION OF HONOR, Appellant

No. 29922

Supreme Court of Iowa, Des Moines

October 17, 1916

REHEARING DENIED, SATURDAY, JANUARY 13, 1917.

Appeal from Clinton District Court.--A. J. HOUSE, Judge.

ACTION at law to recover the sum of $ 2,000 upon a certificate of membership by defendant to Charles V. Cook. Verdict for $ 1,813 directed for plaintiff. Defendant appeals.

Affirmed.

A. J Schuyler, Jamison, Smith & Hann, and Ring & Hann, for appellant.

F. M Fort, for appellees.

SALINGER, J. GAYNOR, C. J., LADD and EVANS, JJ., concur.

OPINION

SALINGER, J.

Responding to what it treated as a challenge of our jurisdiction, appellant amended, setting out a judgment against it, but failed to say when it was entered. Attack on this silence is made by motion to strike. Rule 19, and Chapter 205, Acts of the Thirty-third General Assembly, require, for an appealable judgment, that it be entered before abstract is filed. There is no certification, and we must hold that no final judgment is here for review. But here the absence of final judgment becomes material only on the further attack that a notice of appeal is too indefinite which does not say in terms from what appeal is taken. While we cannot here apply the rule that, presumptively, appeal is taken from final judgment, we can and should presume that it was taken from the order directing a verdict for appellee. Clark v. Van Loon, 108 Iowa 250, 79 N.W. 88.

But appellee meets this by saying that we cannot presume that the notice was from the order directing verdict for the plaintiff, because the record fails to show that such an order was made. It is not disputed that defendant moved for a directed verdict, and that plaintiff moved for one in her favor. But appellee asserts that the record fails to show that either motion was ruled on. We have gone through a cloud of denials, amendments, motions, and finally a transcript, and find the record to be this: Defendant moved for a directed verdict in its favor. No ruling nor exception appears, immediately following the end of this motion. It is instead followed immediately by the motion of plaintiff. In connection with it, counsel for plaintiff made a statement that the verdict should be for $ 1,813. Immediately following this statement by counsel, the record exhibits this:

"By the court: The plaintiff have leave to amend their petition as to the interest on the amount claimed, to correspond with the proof"--which would make it $ 1,813.

"The jury returns a verdict in favor of plaintiffs in the amount of $ 1,813, under instructions of the court. Exceptions."

We cannot agree that there was a failure to rule. The plaintiff asserted that $ 1,813 was what was due her. The court permitted amendment justifying that recovery. The jury returned a verdict for plaintiff in just that amount, and did so under instructions of the court. It is, therefore, manifest that the record shows that the court instructed that such a verdict should be returned. The court entered judgment upon that verdict. It would be utter straining to say that this does not amount to overruling the motion of defendant, and sustaining that of plaintiff. On this record, it is no strained construction to hold that the notice of appeal is sufficiently definite. The record exhibits but one thing from which an appeal will lie, to wit: the order directing a verdict against the defendant. The notice of appeal must be held to refer to that order. It follows that the appeal must be entertained, but be limited to the review of that one order.

3.

This disposes of a number of contentions as to whether a motion to set aside a verdict is the equivalent of a motion for new trial; and on whether the motion to set aside was filed in time; and whether assignments complaining of the overruling of the motion to set aside are sufficiently specific under the rule. This is so because the order sustaining motion for directed verdict in favor of plaintiff is reviewable here, though no motion to set aside judgment or for new trial was filed. Checkrower Co. v. Bradley, 105 Iowa 537, at 547, 75 N.W. 369.

II. If exceptions were taken, they were timely. To be sure, no exception was interposed after defendant finished making its motion. But the first motion was immediately followed by one for the plaintiff, and the court, no doubt, waited before ruling on either until it passed on both. At any rate, no ruling was made on the defendant's motion at the instant when same was presented, and consequently there could not be an exception to the ruling, then. It could not be excepted to until it existed. Now, the instant that the motion for the plaintiff was presented, the court, as have seen, ruled on both motions, and what we construe to be such ruling is followed by the word "Exceptions." It is manifest that this is intended to recite that someone was taking exceptions to the return of the instructed verdict, and to the proceedings leading thereto and immediately preceding the return. No one but defendant could have taken them. The motion adverse to plaintiff had been denied. Her motion for verdict had been sustained for every penny she claimed, and a directed verdict for that amount returned in her favor. Even as this gave plaintiff all she asked, it denied every position taken by defendant. It is no strained reasoning to hold that it is the defendant who took the exceptions, and that they relate to what was done with reference to an instructed verdict against defendant.

III. It is not a material inquiry whether the judgment entered was duly excepted to. The point has been disposed of so effectually by our holding that we shall proceed as though there were no final judgment. Even if there were one, it would be merely the formal giving effect of the order directing a verdict. It would be sufficient that said order was duly excepted to, even though the judgment based upon it as matter of course was not excepted to. Haefer v. Mullison, 90 Iowa 372, 57 N.W. 893; Clement v. Drybread, 108 Iowa 701, 78 N.W. 235. Gillespie v. Ashford, 125 Iowa 729, at 740, 101 N.W. 649, does not run counter to these.

DIVISION II.

I. On May 22, 1907, defendant, at its regular annual meeting, changed its constitution so that it raised the monthly assessment, theretofore exacted from the assured, from $ 4.00 to $ 4.60 a month, and made another change which, in effect, scaled the face of the certificate. It seems to be conceded that since then, defendant has enforced this constitution as changed, except that the assessment for June, 1907, was made and collected in accordance with the schedule as it was before the change. Defendant answers that it adopted amendments and revisions of its constitution and by-laws and its schedule of rates effectuating said changes in pursuance of the authority then vested in it "under the articles of incorporation, constitution and by-laws of said order;" that all the above and foregoing changes and amendments to the constitution and by-laws were made in pursuance of resolutions regularly adopted according to the provision of the constitution of the order, and in accordance with the authority conferred upon the Grand Lodge; and that the changes were made by the Grand Lodge "by proper resolutions, duly and regularly adopted, as provided in Sec. 6 and 6 1/2 of its amended constitution and by-laws, to which reference is made, and the same hereby made a part of this division of the answer."

In essence, the affirmative defense is that a valid change was made raising the assessment of Cook; that he had legal notice of the change; that he is estopped to assail the legality of the change because, after he was advised of it, he paid the assessment exacted by it, and, finally, having been duly notified of the assessment for September, 1907, he failed to pay the same; that thereby and therefore he was legally suspended; and that he was never reinstated. The essential counter-position is that the change was illegal; that there was no legal notice of it,--no evidence of the acts relied upon for acquiescence, waiver and estoppel; that the illegal acts of the defendant operated as a renunciation and breach of the contract which absolved assured from paying the unlawfully increased assessment; and that, in view of the attitude of the defendant in insisting upon enforcing the illegal change, it would have been idle to have paid or tendered payment at the old rate. There was no reply, but these defenses are all denied by operation of law, and defendant has the burden.

An investigation of whether defendant has established that the change in question was lawfully made, will necessarily settle much of the controversy exhibited in the appeal.

II. In its amendment to abstract, appellant sets out that its constitution provides:

"First. The Grand Lodge may enact, alter or amend such by-laws as do not conflict with the constitution, provided that they shall be proposed in writing at a stated session of the Grand Lodge, and that two thirds of the representatives vote in favor thereof. Second. The constitution cannot be altered or amended unless such alterations or amendments shall be made in writing at a regular session, signed by three representatives; the question shall be taken on their adoption, and if approved by two-thirds vote of all the representatives present and entitled to a vote, it shall become a part of the constitution."

It may be assumed that the constitution was changed to provide for a higher rate of assessment, and for a lien that operated to scale the face of the certificate. But there is not a scintilla of evidence either that said requirement was complied with literally, substantially, or at all, or what the...