Kaw Life Ass'n v. Lemke

40 Kan. 142

• Court: Supreme Court of Kansas
• Decided: July 15, 1888
• Status: Published

Opinion

Opinion by

ClogstoN, C.:

Plaintiffs in error now insist that the court had no jurisdiction of the defendants, or any of them, for the reason that they all resided out of Leavenworth county, and that as the court held the service as to Grant S. Hamilton void, there was no valid service upon any of the defendants. The defendant in error contends that the service upon the corporation in Wyandotte was a good service; that as the policy of insurance was issued to Lemke in Leavenworth county, the premiums paid in Leavenworth county, and the policy delivered there, and that Lemke died in Leavenworth county, the cause of action, or some part of it, arose in that county, and under § 42 of the code of civil procedure this service would be valid. But as the question of service is not an important one as we view it, we shall not decide this question; for whatever the service was, it was cured by the appearance of the defendants after the judgment was rendered in the cause. By their motion to set aside the judgment, said motion being upon jurisdictional as well as non-jurisdictional grounds, they waived the question of jurisdiction, and made the defendants parties to the action; and this waiver binds them to that judgment as though they had voluntarily appeared at the trial. This question has been fully settled by this court. In Burdette v. Corgan, 26 Kas. 104, Mr. Justice Bkewer, said:

“In the first place, we remark that this appearance by the motion, though called special, was in' fact a general appearance, and by it this defendant appeared so far as she could appear. The motion challenged the judgment not merely on jurisdictional, but also on non-jurisdictional grounds; and whenever such a motion is made, the appearance is general, no matter what the parties may call it in their motion. Such a general appearance to contest a judgment on account of irregularities will, if the grounds therefor are not sustained, conclude the parties as to any further questioning of the judgment. A party cannot come into court, challenge its proceedings on account of irregularities, and after being overruled, be heard to say that he never was a party in court, or bouud by those proceedings. If he was not in fact a party, and had not been properly served, he can have the proceedings set aside on the ground of want of jurisdiction, but he must challenge the proceedings on that single ground.”

(See also Cohen v. Trowbridge, 6 Kas. 385; Fee v. Iron Co., 13 Ohio St. 563; Grantier v. Rosecrance, 27 Wis. 491; Alderson v. White, 32 id. 309; Meixell v. Kirkpatrick, 29 Kas. 679.) This motion brought the parties into court for all purposes, and whatever defect there was in the service was cured.

The second ground, that the petition stated no facts constituting a cause of action against the defendant association and its co-defendants, we think is not well taken. The petition alleges the issuing of the policy; the death of Lemke; the doing of all things necessary to preserve the policy during the lifetime of Lemke; the proof of death, and the demand upon the company for the amount of the policy; the failure of the company to make the assessments within ninety days after the proof of death; the giving of the bond to the state of Kansas for the faithful performance of the duties of the officers of the association, and the failure of the association to comply, with tbe terms and conditions stated in this policy, and prayer for judgment. This we tbink was a good petition, even if it had been challenged by demurrer, and it will not now be scrutinized with the same care that it would be had it been attacked before judgment.

The plaintiffs in error contend, that on the face of this petition and the evidence offered by them, no judgment could legally be rendered for more than the amount which they offered to confess judgment for, for the reason that judgment could only be rendered for the amount they collected by assessment upon the members of the association, and that at the time this assessment was made, some four months after the proof of death, $566.73 was the total amount that could be collected from the members of the association at any time after proof of death-loss. Upon this proposition the plaintiff offered evidence in contradiction, and showed by the report of the company made to the commissioner of insurance of the state long after proof of death-loss, that at the time it was the duty of this association to make the assessment they had members sufficient, upon whom, if any assessment had been made, to pay this claim. The petition alleges that there were members enough at the time of the proof of the loss, upon whom if an assessment had been made, to have realized the full sum of $5,000, the amount claimed by the plaintiff; and we must presume, in the absence of this evidence, that there was offered to the court sufficient proof to sustain that allegation. The plaintiffs in error, however, insist that under that allegation in the petition the policy of insurance and bond made a part of the petition, and that no judgment ought to have been rendered against them, for the reason that the only remedy the defendant in error had, was to compel the officers of the association to' make the assessment, and collect the money from the members of the association. In this we do not agree with the plaintiffs. Primarily, and after proof of death, a beneficiary under that policy had no cause of action until there was a default on the part of the association. It was the duty of the officers or corporation to make the assessment, and it was in the power and province of the corporation itself to compel that duty to be performed. It was for this purpose that they gave a bond to the state of Kansas, and for the doing of these things; and upon failure to do them a cause of action would accrue. Now how can it be said that no right accrued in favor of this beneficiary as against this corporation, when they had failed for four months after proof of death to comply with their contract and make an assessment, or make any attempt to collect from their patrons the amount due this beneficiary? (Lueder’s Ex’rs v. Hartford Life & Annuity Co., 4 McCr. 149; Eggleston v. Centennial Mutual Ass’n, 5 id. 484; Nerskin v. Endowment Legacy Ass’n, 15 N. W. Rep. 683; Reynolds v. Association, 1 N. Y. [Supplement,] 738.)

The further claim that the petition contained two separate canses of action cannot be reached in this motion. If there were two causes of action contained in the petition, the defendants might waive their separation. They could only take advantage of this before judgment, and not afterward. By their non-appearance they waived such objections.

The fourth complaint against this judgment is that it was irregular because rendered against the sureties of the bond as principals, and not as sureties. This was a right the defendants had, and upon a demand the court would have rendered judgment' against them as sureties only; but they made no request, and permitted the judgment to be rendered against them as principals, and they cannot now complain of this irregularity. It was a privilege they had which they did not seek to avail themselves of in time to have the judgment properly rendered against them.

The other grounds in the motion are not of sufficient importance to require notice. The defendants, by their appearance, waived the jurisdiction of the court, and taking the allegations of the petition we must presume that the evidence offered to the court was sufficient to sustain those allegations. The court has approved the judgment, and upon the motion evidence was again offered, and the court on that evidence has overruled their motion to set the judgment aside.

It is recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.