Huron Tribe No. 117 v. Mace

Indiana Court of Appeals

Huron Tribe No. 117 v. Mace

126 N.E. 437, 72 Ind. App. 678, 1920 Ind. App. LEXIS 58

CourtIndiana Court of Appeals

DecidedMarch 9, 1920

DocketNo. 10,244

StatusPublished

This text of 126 N.E. 437 (Huron Tribe No. 117 v. Mace) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Huron Tribe No. 117 v. Mace, 126 N.E. 437, 72 Ind. App. 678, 1920 Ind. App. LEXIS 58 (Ind. Ct. App. 1920).

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Opinion

Nichols, C. J.

—Action by appellee against appellant to recover from appellant certain alleged funeral benefits wbicb she claimed to be due her, by reason of the death of her husband, who was, as alleged, a member of appellant order or association. The complaint and answer, with exhibits, are somewhat lengthy, and it is not necessary to this decision that they be set out. There was a trial by jury which resulted in a verdict for appellee in the sum of $600. Appellant filed a motion for a new trial. Appellee [680]*680filed a remittitur in the sum of $140, after which the motion for a new trial was overruled and judgment rendered for appellee in the sum of $460. The only-error properly assigned and presented is that the court erred in overruling appellant’s motion for a new trial. It appears by the evidence that appellee’s husband’s dues were payable at the last council meeting in June, 1916, which was June 29, 1916; that they, were paid July 5, 1916, and retained by appellant; ■that he died August, 20, 1916; and that, by the bylaws, appellee was his beneficiary. The by-laws, which were read in evidence, provide with reference to arrears in dues as follows:

“Any member of the tribe who shall become in arrears for dues, fines or assessments shall stand suspended from all benefits of whatsoever kind during the continuance of any sickness that may intervene while such member is in arrears and for three moons from date such arrearage shall have been paid, nor shall funeral benefits be paid to the heirs of a deceased brother who died while in arrears for dues or assessments.”

1-2. There is no evidence that any sickness of appellee’s husband intervened while he was in arrears. As to the- provision for funeral benefits, appellee’s husband was not in arrears at the time of his death, having paid his assessment July 5,1916, which was a month and a half before his death. Having accepted and retained the assessment, appellant is estopped from declaring a forfeiture. Supreme Tribe, etc. v. Hall (1900), 24 Ind. App. 316, 56 N. E. 780, 79 Am. St. 262; 29 Cyc 194, 195.

[681]*6813. Appellant next complains that the court erred in not requiring the jury to retire and answer certain interrogatories which it had failed to answer. The interrogatories are not in the record, and no question is presented.

4. Appellant says that a suit cannot be maintained against an unincorporated society. The complaint alleged that appellant was a fraternal organization, duly organized under the laws of the State of Indiana. Provision for such an organization is made in Acts 1915 p. 276, §5061 a et seq. Burns’ Supp. 1918. Appellant pleaded to the merits, without raising any question as to corporate existence in the trial court. It is too late here. Adams Express Co. v. Hill (1873), 43 Ind. 157; 10 Cyc 1347 et seq.

The evidence is sufficient to sustain the verdict. We find no error. The judgment is affirmed.

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Nichols, C. J.

—Action by appellee against appellant to recover from appellant certain alleged funeral benefits wbicb she claimed to be due her, by reason of the death of her husband, who was, as alleged, a member of appellant order or association. The complaint and answer, with exhibits, are somewhat lengthy, and it is not necessary to this decision that they be set out. There was a trial by jury which resulted in a verdict for appellee in the sum of $600. Appellant filed a motion for a new trial. Appellee [680]*680filed a remittitur in the sum of $140, after which the motion for a new trial was overruled and judgment rendered for appellee in the sum of $460. The only-error properly assigned and presented is that the court erred in overruling appellant’s motion for a new trial. It appears by the evidence that appellee’s husband’s dues were payable at the last council meeting in June, 1916, which was June 29, 1916; that they, were paid July 5, 1916, and retained by appellant; ■that he died August, 20, 1916; and that, by the bylaws, appellee was his beneficiary. The by-laws, which were read in evidence, provide with reference to arrears in dues as follows:

“Any member of the tribe who shall become in arrears for dues, fines or assessments shall stand suspended from all benefits of whatsoever kind during the continuance of any sickness that may intervene while such member is in arrears and for three moons from date such arrearage shall have been paid, nor shall funeral benefits be paid to the heirs of a deceased brother who died while in arrears for dues or assessments.”

1-2. There is no evidence that any sickness of appellee’s husband intervened while he was in arrears. As to the- provision for funeral benefits, appellee’s husband was not in arrears at the time of his death, having paid his assessment July 5,1916, which was a month and a half before his death. Having accepted and retained the assessment, appellant is estopped from declaring a forfeiture. Supreme Tribe, etc. v. Hall (1900), 24 Ind. App. 316, 56 N. E. 780, 79 Am. St. 262; 29 Cyc 194, 195.

[681]*6813. Appellant next complains that the court erred in not requiring the jury to retire and answer certain interrogatories which it had failed to answer. The interrogatories are not in the record, and no question is presented.

4. Appellant says that a suit cannot be maintained against an unincorporated society. The complaint alleged that appellant was a fraternal organization, duly organized under the laws of the State of Indiana. Provision for such an organization is made in Acts 1915 p. 276, §5061 a et seq. Burns’ Supp. 1918. Appellant pleaded to the merits, without raising any question as to corporate existence in the trial court. It is too late here. Adams Express Co. v. Hill (1873), 43 Ind. 157; 10 Cyc 1347 et seq.

The evidence is sufficient to sustain the verdict. We find no error. The judgment is affirmed.

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126 N.E. 437, 72 Ind. App. 678, 1920 Ind. App. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huron-tribe-no-117-v-mace-indctapp-1920.

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