National Union v. Sherry

• Decision Date: 17 April 1913
• Citation: 61 So. 944,180 Ala. 627
• Parties: NATIONAL UNION v. SHERRY.
• Court: Alabama Supreme Court

61 So. 944

180 Ala. 627

NATIONAL UNION v. SHERRY.

Supreme Court of Alabama

April 17, 1913

Appeal from Circuit Court, Barbour County; M. Sollie, Judge.

Action by Janie Sherry against the National Union. From a judgment for plaintiff, defendant appeals. Affirmed.

G.L Comer, of Eufaula, for appellant.

A.H Merrill & Sons, of Eufaula, for appellee.

MAYFIELD J.

This submission is on motion to dismiss the appeal and on the merits. The appeal was taken June 3, 1912, and was therefore returnable to the first Monday of the term of this court next after the expiration of 20 days from the date of the appeal. Code, § 2870. While the day fixed by statute for the return of the appeal was in June, 1912, and it was not returned and no transcript was filed until December 10, 1912, it does not follow that the appeal should be dismissed on account of this apparent delay in filing the transcript or in docketing the cause on certificate of appeal. When the reason for the rule ceases, the rule itself ceases.

It could have been of no possible benefit or detriment to either party to have filed the transcript in June, 1912, on the day fixed by the statute. There was no call of any division after that date, during that term of the court, at which the case could have been submitted; and the transcript was actually filed in ample time for a submission at the earliest call at which it could have been submitted, and the case was in fact submitted at the earliest possible time after the appeal was taken. Statutes and rules of court on this subject are intended to facilitate and expedite the business of the courts, and not to cut off nor fetter the right of appeal. As the result could not have been different had the transcript been filed on the day named in the statute, and the statute not providing that the appeal shall be dismissed unless filed on that date, we are unwilling to dismiss this appeal on this showing.

It was decided in the case of Winthrow v. Woodward, 81 Ala 100, 2 So. 92, that: "The failure to file the transcript during the term to which the appeal is taken, no order in the cause being asked or made during the term, though not a discontinuance of the appeal (Code, § 3953), is legal cause of discontinuance; and the appeal will be dismissed on account of such failure, on motion made at the next term with due diligence after the transcript has been filed."

In the case of Porter v. Martin, 139 Ala. 318, 35 So. 1006, it was said: "The return day of the appeal was the first Monday after the lapse of 20 days from March 12, 1902. At all events the record should have been filed in this court on Monday of the week of the call of the Fourth division in this court, which was June 2, 1902. In point of fact, the record was not filed in this court until July 5, 1902, after the term to which the appeal was taken. No excuse for this delay is shown. It cannot be affirmed that the appellees were not prejudiced by it. The motion to dismiss the appeal for this unwarranted delay in filing the record in this court was seasonably made at the term of the court following the filing of the record here. The motion must prevail."

In the case of Collier v. Coggins, 103 Ala. 281, 15 So. 578, the facts were very similar to the facts in this case. The appeal was taken on the 2d of May, 1893, and was returnable on the 29th of that month, and the transcript was not filed until the 5th of December, 1893, and the court said: "The summer call of the Eighth division expired before the return day of the appeal. The next call was late in January, 1894. The record was filed December 5, 1893. The appellee was not prejudiced by the delay in not filing the transcript at an earlier date. The rule on this question is as follows: 'Upon satisfactory excuse being shown for the delay, the court may, in its discretion, permit the transcript to be filed and the cause docketed, for the first time, after the adjournment of the term to or during which the appeal is returnable upon such terms as the court may impose.' Adopted February 10, 1894; 97 Ala. p. ix. The motion to dismiss the appeal must be overruled." This we conceive to be the correct rule and proper practice and results in our denying the motion to dismiss the appeal. This brings us to a consideration of the merits of the appeal.

The action is on a life insurance policy, or, more accurately speaking, a benefit certificate, issued by the appellant, a mutual aid or fraternal society, incorporated, on the life of one of its members, John Sherry. The real bone of contention is whether or not the assured made false and fraudulent representations, in procuring the insurance, sufficient to avoid the policy or to deprive the beneficiary of the fruits of the certificate of benefit in question. This defense was attempted to be set up by a great number of special pleas, to which demurrers were sustained; these rulings on the demurrers forming the basis of numerous assignments of error.

The following expression, taken from the brief of the appellant, is a fair statement of the questions and assignments and of the nature of the questions presented and insisted upon in argument: "The first 44 errors assigned relate to the rulings of the court below on the pleadings. The pleas are somewhat different in phraseology, and a careful (examination ?) of each plea is desired in order to test the rulings of the court below on each of said pleas. This court below sustained the demurrer of the plaintiff to most of the pleas filed by the defendant; and, while a separate assignment of error is made as to the ruling of the court below on each of said pleas, yet it is not necessary, under the facts of this case, to argue each of said errors separately, but the argument will be made as a whole, but applies to each of the errors which are separately assigned. The principal contention between the parties as to the rulings of the court on the demurrers is as to whether or not sections 4572, 4573, and 4579 are and were applicable to the benefit certificate now sued on." We are of the opinion that sections 4572, 4573, and 4579 of the Code apply to the insurance contract sued upon unless the contract was taken from under their influence by the passage of the act of April 24, 1911 (Acts 1911, p. 700). We are of the opinion that the contract sued upon was not taken from under the influence of the first two sections, whatever may be the result as to the last, by the passage of the subsequent act of 1911. The first of said two sections of the Code, if applicable to the contract in question (and we hold that they were), entered into and formed a part of the contract as if written therein as a part thereof; and, in so far as they became a part of the contract, those parts could no more be destroyed or changed, or the obligation thereof impaired, by subsequent statutes, than any other part of the contract. The Constitutions, state and federal, expressly prohibit any such legislation. The latter mentioned section may be said to pertain more to the remedy than to the right; and as to the remedy the rule as to retrospective legislation is different. But as to the influence of this particular section in this particular case it is unnecessary for us to decide, for the reason that all the questions involved on this appeal can be disposed of, without deciding what was the effect of the statute of April 24, 1911, upon section 4579 of the Code, so far as this contract is concerned.

It was said by this court in the case of Leahart v. Deedmeyer, 158 Ala. 295, 48 So. 371: "It may be stated, as a general proposition, that there is no section in our Constitution which prohibits the enactment of a retroactive law. Aldridge v. Tuscumbia, etc., R.R., 2 Stew. & P. 199, 23 Am.Dec. 307; Lindsay v. United States Savings, etc., Ass'n, 120 Ala. 168, 24 So. 171, 42 L.R.A. 783. Section 22 of our Constitution of 1901 expresses the only limitation in that line, and our courts have held that 'ex post facto' laws are necessarily penal laws, so that, unless a law impairs the obligation of a contract, or deprives the citizen of some vested right, or is obnoxious to some other provision of the Constitution, the mere fact that it is retroactive does not render it unconstitutional.

The general rule is that a law will not be construed as having a retroactive effect unless it is plain from its terms that the Legislature so intended. Smith v. Kolb et al., 58 Ala. 645."

The Supreme Court of Massachusetts said in the case of Simmons v. Hanover, 23 Pick. 193: "Upon the general question...