Appeal from Circuit Court, Mississippi County; Allen Hughes, Judge.
BATTLE, J.
In 1905 Maggie Gordon commenced an action against the Knights of the Maccabees of the World in the circuit court of Mississippi county for the Osceola district, and filed a complaint as follows:
The plaintiff states:
"(1) That she was the wife of William R. Gordon, who died January 14, 1905.
"(2) That the defendant is a fraternal society, clothed with authority to issue certificates and policies of insurance upon the lives of individuals.
"(3) That about the 20th day of November, 1904, the defendant sent its agent, in the person of William Welcher, to the said William R. Gordon, and solicited him to become a member of said fraternal society, and apply for insurance therein upon his life, and accordingly the said William R. Gordon applied for membership in said fraternal society and a certificate or policy of insurance to be issued by said fraternal society in the sum of five hundred ($500) dollars, upon his life, payable to plaintiff, and paid to said agent the fees entitling him to said membership and certificate or policy of insurance.
"(4) That at the time said agent received said money from the said William R. Gordon, and took his application for membership and insurance, the said agent represented to the said William R. Gordon that if he, the said William R. Gordon, was approved by the medical board of the defendant, this payment of money to said agent would entitle him to said insurance certificate or policy, and in the event of his death before the same was issued the plaintiff would be entitled to said insurance and could collect it.
"(5) That on the 25th day of November, 1904, the medical board of the defendant approved the application of the said William R. Gordon for membership and insurance, denominated by said defendant as a `life benefit membership,' in defendant's fraternal society, and so notified the said William R. Gordon.
"(6) That the defendant has a subordinate lodge in the town of Osceola, Osceola district, Mississippi county, Ark., and William Seegers is its chief officer. The defendant denies its liability and refuses to pay the amount of said insurance.
"(7) Wherefore plaintiff prays judgment against the defendant for the sum of five hundred dollars ($500.00) and for general relief.
"J. T. Coston, Attorney for Plaintiff."
Upon that cause coming on to be heard the defendant failed to appear, and the court found that the defendant was duly and legally summoned to appear and answer the complaint of the plaintiff, and that defendant was legally and justly liable to her in the sum of $500, and rendered judgment in her favor for that amount.
On the 24th of June, 1905, the Knights of the Maccabees of the World commenced this action against Mrs. Gordon in the Mississippi circuit court for the Osceola district to set aside her judgment against it, alleging, among other things, that it had valid defenses against her action. It alleged that "William R. Gordon made application for membership, and that he paid his initiation fee, his medical examination, and benefit certificate, amounting to $6.25, of which only
$1.00 came to defendant (plaintiff) for a certificate, the rest being retained by the local tent for its expenses, and 25 cents going to the medical examiner. * * * In said application said Wm. R. Gordon answered certain questions and signed the following agreement, to wit: `I hereby agree that the above are true answers to the foregoing questions, and that these statements, together with those made to examining physician in this application and the laws of the Supreme Tent of the Knights of the Maccabees of the World, now in force or that may hereafter be adopted, together with my certificate of membership shall form the basis of this contract for beneficial membership; that any untrue answers, any suppression of facts or neglect to pay any assessments which shall be made by the said Supreme Tent within the time provided by the laws thereof, or neglect to pay the dues fixed by the said laws, in the manner and at the time provided by said laws, or the by-laws of the tent to which I may belong, shall vitiate my benefit certificate and forfeit all payments thereon. I also agree that this application shall not be binding on said Supreme Tent until approved by the Supreme or district medical examiner, and I am initiated in accordance with the laws of the said Supreme Tent, nor shall I be entitled to participate in the benefit funds of the said Supreme Tent, until I have paid my advance assessment.'"
It further alleged: "That among the answers to the questions propounded to said applicant in said application and the truth of which were warranted were the following: `Have you been intoxicated...
