Mosaic Templars of America v. Hall

• Decision Date: 24 October 1929
• Docket Number: 6 Div. 418.
• Citation: 220 Ala. 305,124 So. 879
• Parties: MOSAIC TEMPLARS OF AMERICA v. HALL.
• Court: Alabama Supreme Court

124 So. 879

220 Ala. 305

MOSAIC TEMPLARS OF AMERICA v. HALL.

6 Div. 418.

Supreme Court of Alabama

October 24, 1929

Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action on a policy of life insurance by Rosa Hall against the Mosaic Templars of America. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

C. H Roquemore, of Montgomery, for appellant.

Hiram Dodd and Frank W. Smith, both of Birmingham, for appellee.

BROWN J.

This is an action on a policy of insurance, issued by the defendant on the 10th day of April, 1923, insuring the life of Roberta Hall, who is alleged to have died on the 8th of March, 1925 the suit being filed on March 4, 1926, the plaintiff demanding a trial by jury.

The record shows that the defendant appeared and filed a demurrer to the complaint on the 23d of March, 1926; that the case was called for trial on March 22, 1928, and, though defendant did not appear, the court considered the demurrer, and sustained it, granting plaintiff leave to amend, and, after amendment of the complaint, the defendant failing to appear and further plead, a judgment was entered for the plaintiff, with writ of inquiry to ascertain the damages, which was executed, the jury assessing the plaintiff's damages at $600, followed by a judgment on the verdict.

On April 6, 1928, the defendant entered on the motion docket a motion to set aside this judgment, verified by affidavit alleging as grounds therefor that at the time the judgment was rendered its attorney was engaged in attendance upon the Court of Appeals awaiting the submission of a case wherein he represented the appellant, in response to a notice from the adverse party that said cause would be submitted on that day and it was impossible for its attorney to attend the trial of this case and reach Montgomery in time to be present at the sitting of the Court of Appeals on the same day; that under the policy of insurance, according to stipulations on its face, the plaintiff was not entitled to recover more than $200, if said policy was in force at the time of the insured's death, yet the plaintiff induced the court to render judgment in her favor for $600; that the policy was not in force and effect at the death of the insured, but was null and void.

Motion was presented to the court on April 7, 1928, and an order was entered continuing the motion to a later date, and ordering a stay of execution pending its disposition, and therefore regularly continued until June 2, 1928, when the following order was made: "It is ordered and adjudged by the Court that on the payment of all costs in the case mentioned in this motion, and costs of the motion, on or before June 23rd, 1928, said judgment mentioned in this motion shall be and stand set aside and the said case reinstated, and that on the failure of the defendant to pay the costs as herein ordered and decreed, this motion shall be and stand overruled."

On June 25, 1928, the court entered the following order: "Came the parties by their attorneys, and it appearing to the Court that defendant had failed to pay the costs on June 23rd, 1928, as ordered by the Court, whereupon, it is ordered and adjudged by the Court that this motion be and the same is hereby in all things overruled."

On December 8, 1928, filed and had approved security for costs of appeal " taken to the Court of Appeals of Alabama by the said Mosaic Templars of America from the judgment against it in said cause, and from its motion for new trial," and errors are assigned in respect to the rendition of the judgment nil dicit, and in overruling the motion to set the same aside, and along with the appeal has submitted, in...