Rice v. Iowa

• Decision Date: 29 October 1897
• Citation: 103 Iowa 643,72 N.W. 770
• Parties: RICE v. GRAND LODGE OF A. O. U. W. OF IOWA.
• Court: Iowa Supreme Court

103 Iowa 643

72 N.W. 770

RICE

v.GRAND LODGE OF A. O. U. W. OF IOWA.

Supreme Court of Iowa.

Oct. 29, 1897.

Appeal from district court, Blackhawk county; A. S. Blair, Judge.

This cause was before in this court, and reported in 92 Iowa, at page 417, 60 N. W. 726. The facts are there fully stated, and need not be restated here. On the former trial the district court sustained a motion by plaintiff for a verdict in her favor, and on the hearing in this court the action of the district court was reversed on the ground that the evidence did not authorize such action, and the cause was remanded for further proceedings. At the next trial in the district court, when the evidence was concluded the defendant moved for a verdict in its favor for several reasons, which the court denied, and submitted the cause to the jury, that returned a verdict for the plaintiff, and from a judgment thereon the defendant appealed. Reversed.J. D. & C. Nichols, for appellant.

Hunt & Morrill and O. C. Miller, for appellee.

GRANGER, J.

Some legal propositions were settled on the former appeal, and they must stand as the law of this case. Windsor v. Cobb, 74 Iowa, 709, 39 N. W. 93;Heffner v. Brownell, 75 Iowa, 341, 39 N. W. 640.

It is not, and could not well be, contended that, if Rice was legally suspended at the time of his death, there could be a recovery by plaintiff. Looking to the case on the other appeal, it will be seen that the financier of the subordinate lodge was required to send to each member a copy of the assessment not later than the 8th day of each month, and that any member failing to pay the assessment against him by the 28th day of the same month forfeited all rights under his certificate. The effect of this nonpayment was a suspension, by operation of the law of the order. By the same law it is provided that, if all assessments shall be paid at any time within four months, the mere fact of payment shall operate to reinstate the person suspended. If not thus reinstated within the four months, a reinstatement thereafter must be by such payments, a certificate of health, and a vote of the local lodge. Rice had been suspended for more than the four months when he sent the $20 which paid all arrearages to the date of such payment, but he furnished no certificate of health, and no vote of the local lodge had been taken. This $20 was to cover 17 assessments in the year 1891, and three quarterly dues. The $20 was mailed at Niehart, Mont., August 24, 1891, and received at Guttenberg, Iowa, by the local lodge, September 2, 1891, and placed to the credit of Rice on the books. The secretary acknowledged the receipt of the money, and inclosed in the envelope a copy of the laws of the order, so marked as to call attention to the requirement that a health certificate should be furnished before reinstatement. On the 8th of September, 1891, the secretary of the local lodge mailed to Rice, at Niehart, Mont., notice of another assessment, which was received about the 15th of the month; and on the 25th of the month Rice sent by mail, $5, which was received by the lodge October 3, 1891. By the law of the order, the payment must be made by the 28th of the month, or suspension follows. On the former appeal it was held, under the same state of facts, that there was no payment until after the 28th day of the month, and hence from the 28th Rice stood suspended, because of such nonpayment, unless certain facts relied on would defeat such a result. He died on the 29th. Among the reasons urged in support of a waiver by the order is the manner in which Rice had been permitted to pay his assessments. It does appear that he had at times paid his assessments before due; that is, he would make payments before notice of assessments. It does not appear that he was asked to do so. It was a matter of choice with him, and we know of no rule or reason by which it can be said that such a payment even tends to show a license for, or even acquiescence in, nonpayments...