People ex rel. McPherson v. Western Life Indem. Co.

• Decision Date: 21 February 1914
• Citation: 104 N.E. 219,261 Ill. 513
• Parties: PEOPLE ex rel. McPHERSON v. WESTERN LIFE INDEMNITY CO. et al.
• Court: Illinois Supreme Court

261 Ill. 513

104 N.E. 219

PEOPLE ex rel. McPHERSON

v.WESTERN LIFE INDEMNITY CO. et al.

Supreme Court of Illinois.

Feb. 21, 1914.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, De Witt County; W. G. Cochran, Judge.

Mandamus by the People, on relation of John W. McPherson, against the Western Life Indemnity Company and others. A demurrer having been sustained to the petition, an appeal was taken to the Appellate Court, where, pending appeal, petitioner died, and, the judgment having been affirmed (181 Ill. App. 116), a certificate of importance was granted to the Supreme Court. Cause ordered abated.

Thomas J. Graydon, of Chicago, and Herrick & Herrick, of Farmer City, for appellants.

Ingham & Ingham, of Clinton, for appellee.

CARTER, J.

May 30, 1912, a petition for mandamus was filed by John W. McPherson, in the name of the people, praying that a writ of mandamus might issue against the Western Life Indemnity Company, its president and secretary, commanding them, and each of them, to accept certain paymentsfrom said McPherson in payment of the premium upon a certain life insurance policy issued by said company, and to restore the petitioner to his membership and keep and treat said policy of insurance and contract as in full force and effect during the life of the petitioner, so long as he continued to make the monthy payments as required by said contract. To this petition a general and special demurrer were interposed, which, after a hearing, the court overruled. Appellants stood by their demurrers, and, being further ruled to plead, refused to do so, and thereupon judgment was entered against them by default and a writ of mandamus was awarded against them as prayed in the petition, with costs. From this judgment an appeal was prayed to the Appellate Court, where the judgment of the trial court was affirmed. A certificate of importance being granted, this appeal was perfected.

Since the case came to this court Laura C. McPherson, the wife of John W. McPherson, has suggested his death, and moved that she be substituted, which motion was allowed. It appears from this motion, and from the statements in the briefs, that John W. McPherson departed this life April 17, 1913, while the case was still in the Appellate Court, but the fact was not called to the attention of that court. The first question presented for our consideration is whether this suit must abate because of his death.

[1][2] Under the statute and decisions of this court mandamus is governed by the same rules of pleading applicable to other actions at law. Dement v. Rokker, 126 Ill. 174, 19 N. E. 33;People v. Board of Education, 236 Ill. 154, 86 N. E. 206. The common-law rule was that the death of a party at any stage of the proceedings abated the action. A distinction, however, was made between an appeal and a writ of error, as an appeal divested the judgment of its legal effect, and the rule was that in such case, if the action was one that did not survive, the whole action would abate before final judgment in the appellate tribunal. 5 Ency. of Pl. & Pr. 786, 793, 794; [261 Ill. 515]1 Comyn's Digest, 71-73; Green v. Watkins, 6 Wheat. 260, 5 L. Ed. 256.

[3][4] This court has stated that where a right of action is so entirely personal that a person, by contract, cannot place it beyond his control, the action will not survive; that as a general rule, ‘assignability’ and ‘survivability’ of causes of action are convertible terms. Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, 87 N. E. 860,130 Am. St. Rep. 180. By our statute on abatement it is provided that certain actions shall survive the death of the plaintiff or defendant, but mandamus is not referred to in any way therein; neither is mandamus mentioned as one of the actions that survive, in section 123 of our statute on administration (Hurd's Rev. St. 1912, c. 3, § 122). It appears from this record that the wife is the beneficiary under this insurance policy. It is conceded that she is the only one that could recover under it, and that the representative of the deceased, after his death, would not have any interest in said policy, hence the action would not survive ‘to the heir, devisee, executor or administrator,’ under section 10 of the Abatement Act (Hurd's Rev. St. 1912, c. 1).

Section 8 of our statute on mandamus (Hurd's Rev. St. 1912, c. 87) provides that the ‘death, resignation...