Boening v. North American Union

155 Ill. App. 528, 1910 Ill. App. LEXIS 571

• Court: Appellate Court of Illinois
• Decided: May 3, 1910
• Docket: Gen. No. 14,989
• Status: Published

Opinion

Mr. Justice Smith

delivered the opinion of the court.

The case was tried by the court without a jury, and no “written propositions” were submitted to the court “to be held as law in the decision of the case;” nor was any question of- either law or fact raised on the trial by motion or otherwise, except as to rulings on evidence. “Where a case is tried without a jury and no propositions of law are submitted to be held by'the court, it will be presumed that all questions of law were correctly decided.” Davies v. Phillips, 27 Ill. App. 387; Boehm v. Griebenow, 78 Ill. App. 675; Overbeck v. Ahlmeier, 106 Ill. App. 605.

The theory of plaintiff’s case is that the acceptance of Boening’s back dues by the defendant after he was suspended as a member, and with full knowledge that he was declared reinstated by his lodge, and the retention by the defendant of such back dues up to the time of the trial was a waiver by the defendant of the default and suspension and of the right to declare a forfeiture. There is in the record no substantial controversy in the facts upon which this contention is made. In Conductors Benefit Ass’n v. Tucker, 157 Ill. 194, it was held at page 201 of the opinion: “What acts will in all cases amount to a waiver of a forfeiture of membership in a mutual benefit society cannot be definitely stated, but conduct on the part of the society, which amounts to a recognition of a member’s claim to the continuing rights of membership, will relieve him from the consequences of his default. The receipt of assessments after default in payment is a common form of waiver. The question of waiver is in most cases a question of fact for the jury.” See also Jones v. Supreme Lodge K. of H., 236 Ill. 113. . If in this case the question of waiver be a question of fact, that question was settled by the finding of the trial court, for the finding is not manifestly against the weight of the evidence. There is evidence in the record tending to support the finding of waiver by the defendant, and upon which the court might reasonably so find. If, on the other hand, it is a question of law in this case, the question is not preserved in the record under the authorities cited above. We are of the opinion that the facts as to the waiver being undisputed in this record, it is a question of law; and that the presumption must be here indulged that it was correctly decided.

Various errors of the trial court in its rulings on evidence are urged as grounds of reversal.

In the first place, on a trial by a court without a jury, if improper evidence is admitted, it will not be presumed that it misled the court. We will not presume that the court considers immaterial or improper evidence in reaching its decision. Merchants’ Despatch T. Co. v. Joesting et al., 89 Ill. 152; Mallers v. Crane Co., 92 Ill. App. 514. If, however, there is no material or competent evidence on the issues before the court, or if the propositions of law held or refused, or the rulings of the court on motions show that the finding and judgment of the court must have been based necessarily upon immaterial or improper evidence, it then becomes the duty of this court to consider the rulings and decisions of the court on the evidence. This record does not show that the court considered or based its finding and judgment upon immaterial or improper evidence. This consideration makes it unnecessary to consider many of the alleged errors in rulings referred to in argument.

We find no material error in the admission of the letter from the defendant to George C. Boening dated May 6, 1904.

The court did not err in overruling the objection of incompetency and irrelevancy to the question put to the collector of the defendant, Crompton: “State whether or not those were all the dues and assessments that were due from him (Boening) to the North American Union at the time those dues were paid?”

We think the court properly admitted evidence of the contents of the postal card sent by mail to the secretary of defendant. It was shown that the witness deposited the postal card in a United States mail box, and • if it was a postal card it needed no stamp placed upon it.

The trial court did not err in adding interest to the amount of the certificate and including it in its judgment. Grand Lodge B. of L. F. v. Orrell, 206 Ill. 208.

Appellant objects here for the first time that the amount of the judgment exceeds the ad damnum in the declaration. This objection comes too late. Grand Lodge A. O. U. W. v. Bagley, 164 Ill. 340.

The judgment of the Circuit Court is affirmed.

Affirmed.