Johnson v. Grand Fountain Of United Order Of True Reformers

• Decision Date: 11 May 1904
• Citation: 47 S.E. 463,135 N.C. 385
• Parties: JOHNSON . v. GRAND FOUNTAIN OF UNITED ORDER OF TRUE REFORMERS.
• Court: North Carolina Supreme Court

47 S.E. 463

135 N.C. 385

JOHNSON .

v.GRAND FOUNTAIN OF UNITED ORDER OF TRUE REFORMERS.

Supreme Court of North Carolina.

May 11, 1904.

recordari—dismissal—appeal—beneficiary associations—changing constitution—appearance.

1. A recordari granted defendant by the superior court as substitute for an appeal from a justice not being docketed at that or the succeeding term, plaintiff may at a subsequent term docket the case, and have it dismissed.

2. A beneficiary association may not change its constitution, after its contract with a member, to his detriment, except by consent, the burden of showing which is on it.

3. The refusal of the superior court t6 dismiss a recordari granted as a substitute for an appeal from a justice, while not appealable, being excepted to, is reviewable on an appeal from the court's action in setting aside a verdict and granting a new trial on the ground of an error of law.

4. Any lack of service on defendant is cured by its coming into court, without any special appearance, asking for a recordari, and trying the cause on its merits.

Appeal from Superior Court, Forsyth County; McNeill, Judge.

Action by Nelson Johnson, administrator, against the Grand Fountain of the United Order of True Reformers. From an order setting aside the verdict and granting a new trial, plaintiff appeals. Reversed.

Louis M. Swind and J. S. Fitts, for appellant.

J. S. Lanier, for appellee.

CLARK, C. J. Judgment was rendered before a justice of the peace 30th September, 1902. The defendant took no appeal, but at December term, 1902, on application to thesuperior court, obtained an order for a recordari and supersedeas. The defendant failed to give bond or to have the case docketed either at that term or at the next succeeding term of the superior court, 'which was held in February, 1903. At the March term the plaintiff moved to docket and dismiss. This was refused, and the plaintiff excepted. At the September term, 1903, the recordari and supersedeas not having been yet docketed, the plaintiff again moved to docket and dismiss. This was refused, and the defendant was allowed to docket the recordari and supersedeas at that term, and the plaintiff again excepted. A trial by jury was had, with verdict against the defendant, which the court set aside on the ground that he had misdirected the jury to allow sick benefits, whereas, subsequent to the contract, the general order had changed its constitution so as to provide that sick benefits should not be paid by the defendant, but by the subordinate lodges, and the plaintiff excepted.

There was error in both particulars. The recordari was granted as a substitute for an appeal, and, not having been docketed, the plaintiff had a right to docket the case and have it dismissed at March term, 1903, and also at September term. Clark's Code (3d Ed.) p. 731; Brown v. Plott, 129 N. C. 272, 40 S. E. 45; Davenport v. Grissom, 113 N. C. 38, 18 S. E. 78; Ballard v. Gay, 108 N. C. 544, 13 S. E. 207; Boing v. Railroad, 88 N. C. 62.

As to the second ground, the defendant could not change its constitution, subsequent to the contract, to the detriment of the other party, except by mutual consent. Bragaw v. Supreme Lodge, 128 N. C. 356, 38 S. E. 905, 54 L. R. A. 602. And this was not shown. It was error against the plaintiff to put the burden upon him to show that there was no consent to the change. The opposite was held to be the law. Hill v. Life Ass'n, 128 N. C. 463, 39 S. E. 56; Strauss v. Life Ass'n, 128 N. C. 465, 39 S. E. 55, 54 L. R. A. 605, 83 Am. St. Rep. 699; Simmons v. Life Ass'n, 128 N. C. 469,...