Kempton Lodge, No. 482, I. O. O. F. v. Mozingo

• Decision Date: 10 December 1913
• Docket Number: 22,491
• Citation: 103 N.E. 411,180 Ind. 566
• Parties: Kempton Lodge, No. 482, I. O. O. F. v. Mozingo, Administrator
• Court: Indiana Supreme Court

103 N.E. 411

180 Ind. 566

Kempton Lodge, No. 482, I. O. O. F. v. Mozingo, Administrator

No. 22,491

Supreme Court of Indiana

December 10, 1913

From Tipton Circuit Court; Leroy B. Nash, Judge.

Action by Francis T. Mozingo, administrator of the estate of Francis M. Mozingo, deceased, against Kempton Lodge, No. 482 Independent Order of Odd Fellows. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p 590.)

Affirmed.

George H. Gifford, Glen J. Gifford, John P. Kemp, Charles Kemp and George Shirts, for appellant.

John A Swoveland and Every A. Mock, for appellee.

OPINION

Spencer, J.

This is an action commenced in the Tipton Circuit Court by Francis M. Mozingo to recover sick benefits alleged to be due him from appellant. Before the judgment herein was rendered said Francis M. Mozingo departed this life, and appellee, the administrator of said decedent's estate, was substituted as party plaintiff.

The original complaint in this cause was filed on August 30, 1910. In answer thereto appellant tendered a plea in abatement, to which a demurrer was filed and sustained. Prior to the ruling on such demurrer, however, appellee's decedent filed an amended complaint in two paragraphs but appellant made no effort to refile its plea in abatement. Appellee now contends that the error, if any, in sustaining the demurrer thereto was harmless. This position is well taken. An amended complaint, which is complete in itself, and which does not refer to the original complaint, entirely supersedes it, and becomes the sole statement of the plaintiff's cause of action. Travelers' Protective Assn. v. Smith (), Ind. , 101 N.E. 817; Weaver v. Apple (1897), 147 Ind. 304, 46 N.E. 642; Hedrick v. Whitehorn (1896), 145 Ind. 642, 43 N.E. 942; Holland v. Hummell (1909), 43 Ind.App. 358, 87 N.E. 662. Appellant's plea in abatement was addressed to the original complaint in this cause. The original complaint later was superseded by an amended complaint, which stood independent of all prior proceedings, and if appellant sought to abate the cause of action stated in such amended pleading, it should have addressed a proper plea thereto.

The first paragraph of the amended complaint alleges, in substance, that appellant is a secret benevolent and beneficial order, organized under the laws of Indiana; that it is a subordinate order, acting under a charter granted by the Grand Lodge of Independent Order of Odd Fellows of the State of Indiana; that pursuant to the authority granted in such charter and in accordance with certain specified statutes of said Grand Lodge, appellant enacted a by-law, which was in full force at the times herein mentioned, prescribing that any member who had been a contributing member in full fellowship for six months when incapacitated by illness should receive certain stated sums as sick benefits; that on January 27, 1907, appellee's decedent sustained a stroke of paralysis and subsequent to that time was sick and unable to earn a livelihood; that he was at all times during said illness fully entitled to receive sick benefits in accordance with appellant's said by-law and gave due notice of his sickness to appellant; that he prepared and presented to appellant lodge a claim for the benefits due him, which claim was rejected, and he then "appealed from the decision of said lodge, and in pursuance to the laws of the order regarding such appeals, he selected a Past Grand of a neighbor lodge, as one of a Committee of Past Grands to act as a trial committee, in the trial of the merits of his said claim; that in pursuance to said laws, the defendant (appellant) also appointed a Past Grand of a neighbor lodge to serve on said committee; that under said laws of said defendant order, the two Past Grands thus selected should choose a third Past Grand, all of whom should constitute a committee to try said claim; that the Past Grand chosen by the plaintiff has been ready and willing at all times to select a third Past Grand, but the defendant wrongfully instructed the Past Grand so selected by it not to act or proceed to discharge his duties until directed to do so by it, under the seal of its lodge, and said Past Grand has elected to conform to the wishes of said defendant, and thus refuses to discharge the duties encumbent upon him as a member of such committee, and refuses to select a third Past Grand; that therefore plaintiff is and has been unable to secure a trial of his claim, although the same is just and meritorious." Then follows the prayer for relief.

A demurrer to this paragraph of complaint was overruled and such ruling is now assigned as error. Appellant relies on the rule that a beneficial or fraternal association may, by its by-laws, provide tribunals within the...