The Supreme Council of Catholic Benevolent Legion v. Boyle

• Decision Date: 20 June 1894
• Docket Number: 1,289
• Citation: 37 N.E. 1105,10 Ind.App. 301
• Parties: THE SUPREME COUNCIL OF THE CATHOLIC BENEVOLENT LEGION v. BOYLE
• Court: Indiana Appellate Court

37 N.E. 1105

10 Ind.App. 301

THE SUPREME COUNCIL OF THE CATHOLIC BENEVOLENT LEGION v. BOYLE

No. 1,289

Court of Appeals of Indiana

June 20, 1894

From the Allen Superior Court.

Judgment affirmed at the costs of appellant.

W. P Breen and J. Morris, Jr., for appellant.

W Leonard and E. Leonard, for appellee.

OPINION

LOTZ, C. J.

The appellant, the Supreme Council Catholic Benevolent Legion, is a corporation organized under the laws of the State of New York. The particular business and objects of the corporation is to unite fraternally all male Roman Catholics, personally acceptable, of sound bodily health, between the ages of eighteen and fifty-five years, for social, benevolent, and intellectual improvement, and to afford moral and material aid to its members and their dependents by establishing a benefit fund for the relief of sick and distressed members to be paid to such members as shall become permanently disabled, or to the family or dependents of such members in case of death. Its principal office and place of business is in Kings county, State of New York.

By its constitution and by-laws, the method of accomplishing the purposes of its incorporation and of transacting its business is prescribed. One grand or supreme council is created, which is authorized to issue charters to State and subordinate councils. All the State and subordinate councils are subject to the control of the supreme council. No person can become a member of the association except through the medium of a subordinate council. The subordinate councils are organized in much the same manner as the supreme council, with similar officers and agents authorized to transact business.

The benefit fund, payable upon the death of a member, is divided into six different grades or amounts. These funds are derived by levying and collecting per capita assessments upon the members, the amount of the assessment depending upon the age of the member when admitted to membership, and grade or amount to be paid on the certificate issued to him.

A subordinate council, known as St. Julien Council, No. 89, was established in the city of Fort Wayne, in Allen county. William Boyle became a member of St. Julien Council, and the supreme council, on the 6th day of march, 1888, issued to him a beneficiary certificate for the sum of $ 2,000, payable to the appellee, Anna Boyle, wife of said William, upon the conditions therein named. The appellee brought this action, based upon the beneficiary certificate, alleging the death of William Boyle while a member in good standing in said order. She obtained a judgment in the sum of $ 2,209.75, to reverse which this appeal is prosecuted.

The first assignment of error discussed by appellant's counsel is that the trial court erred in overruling the motion to set aside the sheriff's amended return to the summons. The appellant appeared specially for the purpose of making this motion. The amended return shows that the summons was served upon certain persons who are described respectively as president, secretary, and treasurer of St. Julien Council, No. 89, being a subordinate council of the Catholic Benevolent Legion.

The return concludes as follows: "No other superior or higher officers of said company found in my county."

The statute (section 318, R. S. 1894) provides that process against either a domestic or foreign corporation may be served on its chief officer, and if such chief officer be not found in the county, then upon its cashier, treasurer, director, secretary, clerk, general or special agent. There is nothing in the return which indicates that the persons served were either officers or agents of the appellant. Nor is there anything to show that St. Julien council was the agent of the supreme council. The statute requires that the summons shall be served upon some person authorized to receive such service. It is the duty of the person bringing the action to point out and indicate to the officer the person or persons upon whom the service should be made, and it is the duty of the officer to serve such person or persons in the order named in the statute, and make his return accordingly. The complaint can not be looked to in order to determine the sufficiency of the return.

The service, in fact, must be made on such person as the statute directs, and an allegation in the complaint as to who are officers or agents will not vary the requirements of the statute, if in truth such persons are not officers or agents. The return should show that the defendant (the appellant) was served by reading the process to the officer or agent named in the statute. The return is insufficient, and the court should have sustained the motion to set it aside. But this error is not necessarily reversible error. No judgment shall be reversed for any defect in form, variance, or imperfections contained in the returns which might, by law, have been amended in the court below, when it appears that the merits have been fairly tried and determined. Section 670, R. S. 1894.

With the appellant's answer filed in this case, is set out a copy of the constitution and by-laws of the supreme council, and of the subordinate councils, and from these it appears that the business of the supreme council, so far as pertains to the admission of members, collecting assessments and making proof of death and disability of members are concerned, is done through and by the subordinate councils. The subordinate councils are the agents of the supreme council. The officers of the subordinate council are its agents, and, therefore, sub-agents of the supreme council. When the proper agent of a corporation in the county is served with process, this is sufficient to give the court jurisdiction. The answer, taken in connection with the return, shows that the proper agent of the appellant was actually served with process, and the return might have been amended in the court below. Where the ultimate judgment pronounced by the court is right, no intervening error will avail in securing a reversal.

Two other errors assigned by appellant, for which it is claimed the cause should be reversed, are the overruling of its demurrer to the second paragraph of the complaint and sustaining appellee's demurrer to the second paragraph of answer. Each of these rulings presents the same question. We will consider the latter only.

The gist of the second paragraph of the answer is that the constitution and by-laws of the Catholic Benevolent Legion (which are made a part of the pleading) provide that in case of the death of a member in good standing, the subordinate council of which the deceased was a member shall appoint a committee to ascertain the cause of death and the circumstances attending the same, and make a report thereof to the subordinate council; that such report, together with proof of death properly attested, and an official notice of such death, stating the name, age at date of admission, number of benefit certificate, date and cause of death, amount paid to benefit fund, and number of grade of deceased, shall be forwarded to the supreme council. That no other or different method of notifying the supreme council of the death of a deceased member is provided for in the by-laws; that St. Julien Council had notice of the death of said William Boyle, but had neglected and refused to appoint a committee to inquire concerning the death of said Boyle, as required by the laws of the society in order to notify the supreme council of such death; that no such proofs of death, and no such report of said committee, were ever presented to the appellant, as in the by-laws provided, which said by-laws were in full force continuously from the time the application of the said Boyle was presented until the time when his death is alleged to have occurred.

It is alleged in the complaint that immediately after the death of William Boyle the appellant was furnished with notice of such death, and that appellee frequently demanded payment of her certificate. There is nothing in the by-laws that required the appellee to make proof of the death of her husband, either to the subordinate or supreme council. When the subordinate council received information of the death of one of its members, it was its duty to make the necessary proof to the supreme council. St. Julien council was an agency or instrumentality created by the appellant. If its own instrumentalities failed to act it can not be heard to interpose their delinquencies to defeat this action.

It appears from the allegations of the complaint, that William Boyle was drowned of the 11th day of July, 1891, and this action was commenced June 18, 1892.

The appellant had ample time in which to ascertain the fact of the death. There was no error in sustaining the demurrer to this paragraph of answer.

The lower court overruled a demurrer to the second paragraph of appellee's reply to appellant's third paragraph of answer. This ruling is assigned as error.

The third paragraph of answer alleges that, in the application of William Boyle, which is made a part of the certificate sued on, and a copy of which is attached to the answer, he (Boyle) stated his age as between 36 and 37 years, which he knew, at the time, to be false; that his age, at the time he signed the application, was between 45 and 46 years; that the validity of the certificate sued on depended upon the statement of Boyle as to his age being true; that, therefore, appellee ought not to recover in her action.

The second paragraph of reply to this answer alleges, in substance, that Boyle, at the time of signing his application, did not know his true age, and so informed Father O'Leary, the spiritual director, and Thomas Meegan and Henry Fry, "agents of the defendant," at the...