Hannon v. Grand Lodge of Ancient Order of United Workmen of Kansas

• Decision Date: 10 February 1917
• Docket Number: 20629
• Parties: HANNON v. GRAND LODGE OF ANCIENT ORDER OF UNITED WORKMEN OF KANSAS.
• Court: Kansas Supreme Court

163 P. 169

99 Kan. 734

HANNON v. GRAND LODGE OF ANCIENT ORDER OF UNITED WORKMEN OF KANSAS.

No. 20629

Supreme Court of Kansas

February 10, 1917

Syllabus by the Court.

The statutory provision that any fraternal beneficiary association which fails to pay within 60 days an unappealed judgment against it shall be excluded from doing business in the state, which has been held to establish a 60–day limit for appeals by such an association, applies to domestic as well as to foreign corporations.

The section of the statute (Code Civ. Proc. § 755 [Gen. St 1909, § 6351]) adopting the present Code of Procedure which repealed the former Code and “all acts amendatory thereof and supplemental thereto” did not affect limitations upon the period within which certain actions may be brought, fixed by other statutes, not relating primarily to procedure, and not expressly amending or supplementing the general act on that subject.

The evidence is found to be sufficient to support a presumption of the death of a person arising from his unexplained disappearance, followed by an absence of seven years, during which nothing was learned of him, notwithstanding the diligent prosecution of inquiries.

A by–law of a fraternal beneficiary association providing that “mysterious disappearance or unexplained absence of a member shall never be considered proof or evidence of death of such member” does not prevent the application of the usual rule as to unexplained absence under certain circumstances being sufficient to raise a presumption of death, in the trial of an action brought upon a certificate issued before its adoption.

Appeal from District Court, Wyandotte County.

Action by Mary Emma Hannon against the Grand Lodge of the Ancient Order of United Workmen of Kansas. Judgment for plaintiff and defendant appeals. Appeal dismissed.

Edgar Bennett, of Washington, Kan., for appellant.

Samuel Maher, of Kansas City, for appellee.

OPINION

MASON J.

Mary Emma Hannon recovered a judgment against the Grand Lodge of the Ancient Order of United Workmen of Kansas upon a beneficial certificate issued to her husband, and it appeals.

1. The defendant is a fraternal beneficiary association incorporated under the laws of this state. Its appeal was not taken within 60 days after the rendition of the judgment, and the plaintiff moves to dismiss on that ground. The statute provides that:

Any such association "which shall fail to pay any judgment rendered against it in any court in this state, unappealed from, within sixty days of the rendition of such judgment, ...shall be excluded from doing business within this state." Gen. St. 1915, § 5413.

This provision has been interpreted as requiring an appeal by such an association to be taken, if at all, within the time named, and as authorizing the dismissal of its appeal if perfected after that period. Modern Woodmen v. Heath, 71 Kan. 148, 79 P. 1091; Daughters of Justice v. Swift, 73 Kan. 255, 84 P. 984. The defendant seeks to avoid this effect of the statute by contending that it applies only to foreign associations authorized to do business in this state. It has not heretofore been so regarded. The appellant in the case last cited was a Kansas corporation. The language used to describe the penalty imposed for a failure to comply with the requirement referred to--exclusion from doing business in the state-- tends to suggest that a foreign rather than a domestic corporation was in the mind of the draftsman of the act, and expressions which it elsewhere employs have a similar tendency. But a consideration of the statute as a whole makes it clear that domestic corporations are covered by the provision under consideration, and by the other provisions of the same section, so far as they are in their nature applicable. The second section of the act (Gen. St. 1915, § 5402) refers in terms to associations organized under the laws of this state, and the section requiring the payment of unappealed judgments within sixty days also contains a provision for an injunction against a company which violates that or any of the stated requirements, and adds that a receiver may be appointed "in case of a perpetual injunction allowed, under the provisions of this section, against an association incorporated under this act or other law of Kansas."

2. The defendant also maintains that, inasmuch as the statute referred to was enacted in 1898, the portion of it requiring appeals by fraternal beneficiary associations to be taken within 60 days was annulled by the adoption of the present Code in 1909, containing a section repealing the former Code of Civil Procedure, "and all acts amendatory thereof and supplemental thereto." Civ. Code, § 755 (Gen. St. 1909, § 6351). A number of statutory provisions limiting the time within which certain actions shall be brought are found outside of the Code of Procedure, such as that relating to the recovery of land sold for taxes (Gen. St. 1915, § 11456) or those relating to injunctions against assessments for local improvements (Gen. St. 1915, § § 1352, 1783, 1970). These provisions in a sense may be said to be amendatory of and supplemental to the Code of Procedure. But essentially they are independent enactments, and have been so treated. The existence of special limitations to be found elsewhere is recognized by the Code itself. Civ. Code, § 14 (Gen. St. 1909, § 5607). And these special limitations are not subject to the exceptions provided in the Code. Beebe v. Doster, 36 Kan. 666, 14 P. 150. Doubtless many statutes relating to substantial rights, and dealing with matters of procedure only incidentally, contain provisions that by necessary implication restrict the application of sections of the Code, and may to that extent be said to amend or supplement them. But clearly the Legislature had no thought of wiping out these special limitations and restrictions when it repealed the old Code and "all acts amendatory thereof and supplemental thereto." Its obvious purpose was to install a new procedural system, complete in itself, and superseding all former legislation directed to that specific subject. The repeal reached all acts which expressly amended or supplemented the Code, but not those which affected it only impliedly and incidentally.

3. Notwithstanding that the appeal was not taken within the prescribed time, the questions sought to be raised have been examined upon their merits. The plaintiff’s case rests upon her claim to have shown that her husband had disappeared and had not been heard from for more than seven years, under circumstances that warranted a presumption of his death, within the rule applied in Modern Woodmen v. Gerdom, 72 Kan. 391, 82 P. 1100, 2 L. R. A. (N. S.) 809, 7 Ann. Cas. 570, Id., 77 Kan. 401, 94 P. 788, and Caldwell v. Modern Woodmen, 89 Kan. 11, 130 P. 642. The defendant maintains that the showing failed, chiefly because it did not appear that sufficient diligence had been exercised to trace and discover the missing person. We think there was evidence enough on that point, the details of which need not be stated, to take the case to the jury.

4. After the plaintiff’s husband joined the defendant association it adopted a new by-law in these words:

"Mysterious disappearance or unexplained absence of a member shall never be considered proof or evidence of death of such member."

Complaint is made of the giving of this instruction regarding it:

"This by-law as far as it controls or governs the

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