Reed v. Woodmen of the World
| Decision Date | 02 June 1933 |
| Docket Number | 7065. |
| Citation | 22 P.2d 819,94 Mont. 374 |
| Parties | REED v. WOODMEN OF THE WORLD. |
| Court | Montana Supreme Court |
Appeal from District Court, Gallatin County; B. B. Law, Judge.
Action by John H. Reed against Woodmen of the World. From judgment dismissing plaintiff's action, plaintiff appeals.
Reversed and remanded with directions.
That plaintiff may attempt to offer proof under theory on which complaint does not state cause of action will not warrant sustaining of demurrer to complaint, since such proof may properly be excluded by timely and proper objection.
Walter Aitken, of Bozeman, for appellant.
Loud & Choate, of Miles City, and John L. Schweigert, of Denver Colo., for respondent.
The plaintiff brought this action to recover certain alleged illegal assessments paid under protest by himself and his assignors to the defendant, a foreign mutual fraternal life insurance corporation doing business in Montana.
The plaintiff in his complaint alleges the corporate existence of the defendant; that he was the owner and holder of a benefit life insurance certificate or contract in the defendant corporation, a copy of which was annexed to the complaint and that the constitution of the defendant provided "The head officers *** shall call a double or multiple assessment for any month when at any time the funds available in the benefit fund for the payment of death claims are not sufficient to pay monthly all approved death claims." The constitution further provided that the benefit fund shall be maintained and replenished in such manner that all death claims might be paid within twenty days after their approval.
Plaintiff further alleged that on April 25, 1929, four extra or multiple assessments were levied on plaintiff's certificate and those of his assignors, and that unless the same were paid as demanded, if within their contracts of insurance, the certificates would become void. Plaintiff and his assignors upon receipt of the demand paid the extra assessments under protest, not being advised at such time of the condition of the benefit fund and of the outstanding claims against it.
It was further alleged that these multiple assessments were "illegally, improperly and unnecessarily levied and imposed against the plaintiff and his assignors in that said extra or multiple assessments were not necessary to meet the just and lawful demands against" the defendant "for the payment of death claims," as provided in the constitution of the defendant.
Plaintiff alleged the specific amount paid by each of his assignors under protest, the assignment of the claims of his respective assignors unto himself, his demand for repayment made upon the defendant, and its refusal and retention of the payments.
The defendant appeared by demurrer, challenging the sufficiency of the complaint, on May 9, 1932. On May 28th following, before a hearing was had on the original demurrer, defendant filed an amended demurrer and included an additional ground therein not specified in the first demurrer, namely, that the court was without jurisdiction of the subject-matter of the action, in that it appeared on the face of the complaint that the defendant was a foreign corporation domiciled in the state of Colorado, and that, in order for the court to grant the relief demanded in the amended complaint, it would be necessary for the court to interfere with the internal management of a foreign corporation.
The trial court, after hearing, sustained defendant's amended demurrer. Plaintiff failing to amend or further plead, a judgment of dismissal of the action was entered, from which this appeal was perfected.
Plaintiff urges that the defendant, by not raising the question of jurisdiction at the time it made appearance, waived its right to challenge the jurisdiction of the trial court.
Jurisdiction is the power to hear and determine the particular case presented for consideration and to render such a judgment as the law authorizes in that case. In order to bring this power into activity, there must be a complaint containing facts constituting a wrong for which redress may be had under the law; and in order to continue the activity of this power, the parties defendant must be before the court either as a result of the service of process or by voluntary appearance. Holt v. Sather, 81 Mont. 442, 264 P. 108. Parties seeking to challenge the jurisdiction of the court over them waive the right so to do when they contend that through some defect in the process of the court or its service it is without jurisdiction, unless the jurisdictional question is raised at the first opportunity. State ex rel. Bingham v. District Court, 80 Mont. 97, 257 P. 1014; In re Graye, 36 Mont. 394, 93 P. 266. As to other questions of jurisdiction, however, they are never waived, for consent will not give jurisdiction of subject-matter. Rader v. Nottingham, 2 Mont. 157; Wilson v. Davis, 1 Mont. 98.
The benefit certificate and the applicable provisions of the constitution and bylaws of the defendant corporation constitute the contract of insurance between the parties. Osborne v. Supreme Lodge, 69 Mont. 361, 222 P. 456.
The rule is that the allegations of a complaint are sufficient if a cause of action is stated upon any theory. Griffin v. Chicago, Milwaukee & St. Paul Ry. Co., 67 Mont. 386, 216 P. 765; Hicks v. Rupp, 49 Mont. 40, 140 P. 97; Marcellus v. Wright, 51 Mont. 559, 154 P. 714; Decker v. Decker, 56 Mont. 338, 185 P. 168; Wing v. Brasher, 59 Mont. 10, 194 P. 1106.
The general rule is that the courts of one state will not exercise the power of deciding controversies relating merely to the internal management of the affairs of a corporation organized under the laws of another state, where the act complained of is the act of the corporation either in a stockholders' meeting or through its agents, and is an act which affects the complainant solely in his capacity of a member, a stockholder, or an officer of the corporation; under such conditions the act complained of is one done in the management of the internal affairs of the corporation, and in the case of a foreign corporation our courts will not assume jurisdiction. Allen v. Montana Refining Co., 71 Mont. 105, 227 P. 582; North State, etc., Min. Co. v. Field, 64 Md. 151, 20 A. 1039; note 18 A. L. R. 1383. Where, however, the act of the corporation complained of affects the complainant's individual right only, then our courts will take jurisdiction whenever the cause of action arises here. Allen v. Montana Refining Co., supra.
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