Lillie v. Modern Woodmen of America
| Decision Date | 08 April 1911 |
| Docket Number | 16,365 |
| Citation | 130 N.W. 1004,89 Neb. 1 |
| Parties | LENA M. LILLIE, APPELLEE, v. MODERN WOODMEN OF AMERICA, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.
AFFIRMED.
Talbot & Allen, C. J. Garlow and Tibbets & Anderson, for appellant.
Matt Miller and L. C. Burr, contra.
This action was commenced in the district court for Lancaster county, and is upon a benefit certificate for the sum of $ 3,000, issued upon the life of Harvey Lillie, payable to Lena M. Lillie, his wife, upon his death. The petition is in the usual form, and its averments need not be here specifically noticed, except to say that it is alleged that defendant is a fraternal beneficiary society, incorporated and doing business under and bye virtue of the laws of the state of Illinois, with its principal place of business in the city of Rock Island, in said state, and authorized to transact business in Nebraska. A summons was issued and returned by the sheriff of Lancaster county as having been served upon the defendant "by delivering in person to E M. Searle, Jr., state auditor, agent for service and attorney in fact for said Modern Woodmen of America, a true and certified copy of the same, and also on A. R. Talbot, head consul for Modern Woodmen of America, at his office and principal place of business of the Modern Woodmen of America in the city of Lincoln, within and for the state of Nebraska, by delivering to him in person a true and certified copy of this writ with all indorsements thereon."
The defendant filed a paper, of which the following is a copy, omitting the caption:
This objection to the jurisdiction was overruled, and defendant's exception noted. It may be doubted if this was in fact and in law a special appearance for the sole purpose of challenging the jurisdiction of the court over the person of defendant. It will be noted that the challenge includes the contention that the court has no jurisdiction of the subject matter of the suit.
In Perrine v. Knights Templar's & Masons' Life Indemnity Co., 71 Neb. 273, 101 N.W. 1017, we held on rehearing (quoting the syllabus) that "an appearance for the purpose of objecting to the jurisdiction of the court of the subject matter of the action, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant, whether the defendant intended such waiver or not." This is practically a reiteration of the holding of the first opinion beginning at page 267 (71 Neb. 267), and in the body of which it is said that such an objection was "in the nature of a demurrer to the jurisdiction of the court, and was in itself an appearance in the case."
It will also be noted that the objections presented in the first and second grounds of challenge are practically, if not strictly, the grounds of demurrer contained in section 94 of the code. The paper filed constituted a general appearance in the case. Again at a later date defendant filed a demurrer to the petition, the second ground of which was that "the court has no jurisdiction of the subject matter of the action," and the third that "the petition does not state facts sufficient to constitute a cause of action." This, also, was clearly a general appearance, notwithstanding the demurrer contained the statement that it was filed "without any intention of waiving its rights to insist upon the special appearance overruled by this court." The simple fact of the presentation of the questions was a waiver of a special appearance, had one been made. On a still later date defendant filed a motion for a more specific statement of the petition, and that the court require certain facts to be set out therein. This, also, was a general appearance. Cropsey v. Wiggenhorn, 3 Neb. 108; Crowell v. Galloway, 3 Neb. 215.
It is insisted by defendant that, under the provisions of section 96, ch. 43, Comp. St. 1909, an action of this kind cannot, without the consent of a defendant, be maintained in any court except where some of the conditions prescribed in that section exist. The section is as follows: "Such society may be sued in any county in which is kept their principal place of business or in which the beneficiary contract was made or in which the death of the member occurred, or in the county of the residence of such deceased member; but actions to recover old age, sick or accidental benefits may, at the option of the beneficiary, be brought in the county of his residence."
In the brief of defendant it is said: "We will not contend that the action is not transitory, nor will we contend that the district court of Lancaster county could not have jurisdiction of the subject matter of (by) consent of the parties or waiver of defendant as to jurisdiction." It will appear from this that it is not contended that where consent is given, or rather where no objection is made, the judgment would be void, but of full force and validity. In effect the contention is that, where none of the conditions named in the section exists, it will depend upon the election of a defendant as to jurisdiction of the court to hear and determine the case upon its merits. If this should be held to be the true effect of the statute, it would rest with defendant to give or refuse to give the district court jurisdiction in all cases where none of the specified conditions exist. Suppose a beneficiary resided in this state, the assured resided and died in another state, the defendant, a foreign corporation, had no principal place of business in this state, and the contract was made in a foreign state, the beneficiary would find the doors of all the courts of the state closed against her, or him, and no suit could be maintained in this state in any court, except by virtue of the consent and permission of the defendant. We cannot give such construction to the section under consideration. Just what the purpose of its enactment was whether to add to and extend the jurisdiction of courts, or to make certain the local jurisdiction where any one of the conditions exist, we need not now inquire. The district court is a court of general common law jurisdiction, and the statute has by general law provided methods of acquiring jurisdiction over the person of foreign companies of the class to which defendant belongs, and it will not do to say that by the section under consideration the method of acquiring jurisdiction by general law is destroyed and the procedure limited to cases where the provisions above referred to exist. Such could not have...
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