Mutual Ben. Health & Accident Ass'n v. Tilley
Decision Date | 03 October 1927 |
Docket Number | (No. 189.) |
Citation | 298 S.W. 215 |
Parties | MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. TILLEY. |
Court | Arkansas Supreme Court |
Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor.
Suit by J. A. Tilley, administrator, against the Mutual Benefit Health & Accident Association. From a decree dismissing without prejudice a motion to set aside a nonsuit and dismissal without prejudice and to render judgment for defendant on the merits, defendant appeals. Affirmed.
Strait & Strait, of Morrilton, for appellant.
Edward Gordon, of Morrilton, for appellee.
The plaintiff below, appellee here, instituted this action in the chancery court against the defendant below, appellant here, on a policy insuring James Richard Holder against death by accident in the sum of $1,000. The appellee alleged that the assured was murdered by his wife, the beneficiary named in the policy, that she thereby forfeited her claim to the insurance, and that the appellant was holding the same in trust for the estate of the deceased, which the appellee, as administrator, was entitled to recover on behalf of the estate of the deceased, James Richard Holder. The appellee alleged compliance with the terms of the contract on the part of the assured before his death and a compliance with the terms of the contract on the part of the appellee since the death of the assured in order to entitle appellee to recovery. The prayer was for the amount of the policy and the statutory penalty and a reasonable attorney's fee.
The appellant answered, admitting the issuance of the policy as alleged in the complaint, but denied its other allegations, and set up that appellee was barred by judgment that had been recovered by the beneficiary in the policy at a former term of the circuit court, and pleaded such judgment as res adjudicata. Testimony by deposition on behalf of the appellee was taken in this cause. On the 29th day of June, 1926, the same being a day of the June term, a hearing was had upon the pleadings and proof adduced. At the close of the testimony, the court indicated to the attorney for the appellee that the proof was not sufficient to justify a recovery, and thereupon the attorney for the appellee asked leave to take a nonsuit, which leave the court granted and dismissed the action without prejudice. Thereafter, on the 26th day of October, 1926, the same being a day of an adjourned term of the chancery court, the appellant filed the following motion:
The court heard the motion upon the facts as above set forth, and, after argument of counsel, found as follows:
"That at the time the plaintiff entered a nonsuit the cause came on to be heard; that, after reading the testimony and before the argument of counsel, the court indicated to the attorney for plaintiff that he did not think his proof was sufficient; whereupon the attorney for plaintiff asked leave to take a nonsuit and dismissed the cause without prejudice, which was at the time by the court granted, and the court finds from the foregoing facts that plaintiff moved for nonsuit before the final submission of the case."
The court thereupon entered a decree dismissing the motion of appellant without prejudice, from which decree is this appeal.
Section 1261 of C. & M. Digest reads in part as follows:
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