Modern Woodmen of America v. Noyes

• Decision Date: 20 May 1902
• Docket Number: 19,810
• Parties: Modern Woodmen of America v. Noyes et al
• Court: Indiana Supreme Court

64 N.E. 21

158 Ind. 503

Modern Woodmen of America v. Noyes et al

No. 19,810

Supreme Court of Indiana

May 20, 1902

From Steuben Circuit Court; E. D. Hartman, Judge.

Action by Cora B. Noyes and another against the Modern Woodmen of America on an insurance policy. From a judgment for plaintiffs, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

J. W White, D. R. Best, E. A. Bratton and C. A. Yotter, for appellant.

J. G Yeagley, W. G. Croxton and F. M. Powers, for appellees.

OPINION

Gillett, J.

The appellees brought this action against appellant in the court below upon a policy of insurance or benefit certificate issued by appellant to appellees, insuring the life of one Frank Noyes. On the 14th day of September, 1899, appellant was defaulted, and, upon a submission of the cause, final judgment was rendered against it for the amount of said policy or certificate. Sixteen days later appellant appeared specially, and filed a verified motion to set aside the default and vacate the judgment; but this motion was overruled, to which ruling appellant excepted, and it has taken the proper steps to present the question as to the correctness of said ruling for our consideration.

As the appearance of appellant was in form special, and for the sole purpose of the motion, the court was authorized to overrule said motion, if it had theretofore obtained jurisdiction over the person of the appellant. It is upon the theory that there was no such jurisdiction, and not on the theory that the court should have relieved it on the ground of inadvertence, that appellant's counsel now contend that said motion should have been sustained.

The service of process upon which appellees rely to support their judgment was had upon the chief officers, including the consul and the clerk, of a local lodge of said appellant, designated by it as local camp number 4789. It appears from said motion that the appellant is a foreign fraternal and beneficial corporation; that it has a system of local camps, possessing a ritualistic form of work, and a representative form of government; that it has two classes of members,--social and beneficial; that, if a person becomes a beneficial member of said society, he is required to make application for such membership to one of its local camps; that, if such camp approves the application, it is forwarded to the supreme officers of said order, and if they approve it, a benefit certificate, such as the one sued on, is transmitted to the local camp, and upon the applicant being initiated into said camp the certificate is countersigned by the consul and clerk of the local camp, and the applicant thereupon becomes entitled to said certificate, which authorizes the beneficiary therein named to recover the amount thereof upon the death of the assured, provided that the conditions of said certificate have been performed. It further appears from said motion that said Frank Noyes made his application for membership in said society as a beneficial member, through said local camp number 4789; that he was inducted by said local camp into said society as a beneficial member thereof, and that the certificate sued on was issued to him by appellant; and that it was duly countersigned by the consul and clerk of said local camp. There are other allegations of fact in said motion, but they do not bear upon the question that is now before us. It appears that the appellant had failed to deposit with the Auditor of State a certified copy of a vote or resolution of the board of directors of said society, consenting that service of process in any suit against said society might be served upon the Auditor of State, with like effect as if such society was incorporated in this State, as required by Acts 1897, § 19, p. 318, § 4914s Burns 1901.

It is contended by appellant's counsel, notwithstanding such omission, that it was not competent to serve it with process under the provisions of the code, because service upon the Auditor of State would have been a sufficient service as against appellant, even without the written consent being deposited, for the reason that the society would have been estopped to deny the validity of such service, having done business in the State. The cases of Ehrman v Teutonia Ins. Co., 1 McCrary 123, Knapp v. National, etc., Ins. Co., 30 F. 607, and Hagerman v. Empire Slate Co., 97 Pa. 534, are cited in support of the proposition as to an estoppel. The claim of an estoppel in such cases has a basis in sound reason where the judgment under attack is based on such service, but where the service was not had on the...