Wolfe v. Beacon Life Insurance

155 Ill. App. 138, 1910 Ill. App. LEXIS 500

• Court: Appellate Court of Illinois
• Decided: March 30, 1910
• Status: Published

Opinion

Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellant to recover upon the policy of insurance issued upon the life of appellant’s husband.

The policy was for the principal sum of $1,000 and payments were to be made in monthly installments in the sum of $21 each month. The suit is brought for the unpaid monthly installments at the time of the commencement of the action. The insured died June 30, 1907; suit instituted September 3, 1908.

Appellee filed in all six pleas, the fourth and sixth setting forth the existence of a by-law of the defendant which is as follows:

“Legal proceedings for recovery of death benefits shall not be brought until after three months from the date of filing final proofs at the home office of the company, and not brought at all unless within one year from the death of the insured * * * .”

Appellant demurred to each of these pleas by special and general demurrer. The demurrer to these pleas was overruled by the trial court. Appellant elected to abide by her demurrer; thereupon appellee withdrew all pleas except the fourth and sixth to which the demurrer had been overruled.

The order of the court in overruling the demurrer was as follows: “It is ordered and adjudged by the court that judgment be entered herein in favor of the defendant and that judgment be entered against the plaintiff for costs.”

Upon this order in overruling the demurrer no final judgment, whatever, was ever rendered so far as is disclosed by the record in this case. An order of the court overruling a demurrer is not a final judgment and no appeal can be taken therefrom.

The appeal in this case is premature and it is, therefore, dismissed with leave to either party to apply to the trial court' for final judgment.

Appeal dismissed.