9. LIFE BENEFIT ASSOCIATION-NO DISCHARGE OF ACCRUED LIABILITY BY
REFUNDING ASSESSMENT.-If a person is enrolled and becomes a mem-
ber of a mutual railroad insurance association without the formal appli-
cation or physical examination required by the by-laws the association,
immediately after being notified of such person's disability, in case of
subsequent sickness, cannot absolve itself from liability, and cancel the
membership by refunding the member's contribution by "time check,”
which offer is made and refused just before the member's death, because
the tender is not a legal one, and because liabilities have already accrued
against the association from which it cannot discharge itself by refund-
ing the assessment. Burlington etc. Relief Department v. White, 701.
10. LIFE BENEFIT ASSOCIATION-BY-LAWS cannot PreveNT ACTION TO EN-
FORCE DEATH BENEFIT.—The rule of a relief department of a railroad
company, having the nature of a mutual insurance association, restrict-
ing themselves to remedies before tribunals created by the association,
does not deprive a beneficiary of the right to maintain an action against
the department to enforce the payment of a death benefit. Burlington
etc. Relief Department v. White, 701.
11. LIFE BENEFIT ASSOCIATION-WIDOW AS BENEFICIARY.-The contract of
a mutual railroad insurance association is ordinarily to pay the death
benefit, where no beneficiary is named, to the wife of a member, if he
has one.
Hence, if one has become a member of such association with-
out any written formal application, a court will hold the widow to be
the beneficiary the same as it would if an application had been filed
without designating any beneficiary. Burlington etc. Relief Department
v. White, 701.
12. BENEFIT SOCIETY-RIGHTS OF BENEFICIARY.-The willingness of a
mutual benefit society, after the death of the insured, to pay into court
the money called for by the certificate, to be disposed of as the court
may direct, cannot affect the rights of the beneficiary, as the society
has no power by stipulation, or otherwise, to change or affect those
rights. McLaughlin v. McLaughlin, 83.
13. BENEFIT ASSOCIATIONS-POLICY PAYABLE TO HEIRS-RIGHTS OF
WIDOW.-If a member of a mutual benefit life insurance company
dies intestate, and his insurance policy is made payable to his “heirs at
law," his widow is entitled to share in the proceeds of the policy. Lyons
v. Yerex, 452,
14. BENEFIT SOCIETY-MODE OF CHANGING BENEFICIARY.-The laws of a
mutual benefit society prescribing a mode of changing the beneficiary
must be followed. It cannot be made in any other manner. Hence, if
that mode is confined to the surrender of the old, and the issuance of a
new, benefit certificate, and the insured, having the power, fails to
make official application for the change, and to pursue the proper
course to effect it, no change can be made by his oral declarations of
intention merely, or by the delivery of the certificate to the person
whom he wishes to become his new beneficiary. McLaughlin v. Mc-
Laughlin, 83.
15. ACCIDENT INSURANCE-MEANING OF WORD "IMMEDIATELY" IN POLICY
The word "immediately" in a policy of accident insurance providing,
as to accidents resulting in death, that notice shall be given and proof
of death be made “immediately” after the accident occurs, that, unless
such proof is furnished within six months thereafter, all claims shall
be forfeited, and that the insurance shall not cover "disappearances,
means such a convenient time as is reasonably requisite for giving the
notice after the discovery of death, and that the proof is to be fur-
nished within the six months specified after such discovery. Kentzler
▼. American etc. Accident Assn., 934.
See BONDS, 3; Judgments, 22; Negotiable INSTRUMENTS, 2
INTERVENTION.
See ATTACHMENT, 5.
ELECTIONS-CONSTRUCTION OF STATUTE.—Under a statute making the giv-
ing away of intoxicating liquor on an election day a misdemeanor it is
no defense that the giving away of such liquor on such day has no
connection with or reference to the election then being held. Wolf v.
State, 34.
JUDGMENT-ROLL.
See EVIDENCE, 11.
1. CONSTRUCTION OF ERRONEOUS RECITAL. — In construing a judgment
which particularly describes lands by reference to the section, township,
and range of the government survey, but which contains an erroneous
recital as to the county in which they are situated, such recital must
yield to the particular description. Rogers v. Cady, 101.
2. DIRECT ATTACK-WANT OF NOTICE.-An attack on a judgment by the
judgment defendant, on the ground of want of actual notice, and fraud
in its procurement, constitutes a direct attack. Thompson v. Mc-
Corkle, 334.
2. JUDGMENTS OF INFERIOR COURTS-JURISDICTION-COLLATERAL ATTACK.
The judgment of an inferior tribunal upon a matter over which it has
jurisdiction cannot be assailed collaterally for errors or irregularities
subsequent to acquiring jurisdiction. The jurisdiction, to be complete
so as to preclude collateral attack, must exist both as to subject mat
ter and as to the parties, and the recital of jurisdictional facts in the
record may be shown to be false by evidence aliunde. Smith v. Claus-
meier, 311.
4. RES JUDICATA.-IF A CAUSE OF ACTION IS SUBMITTEd upon Demurrer
and adjudged insufficient by a judgment sustaining such demurrer on
the merits the plaintiff and his privies and representatives are thereby
barred from asserting the same facts in another action pertaining to
the subject, as effectually as though such facts were found from the
proofs or expressly admitted during the trial. Kleinschmidt v. Binzel,
604.
& RES JUDICATA.-A JUDGMENT AGAINST PLAINTIFF Upon Demurrer does
not preclude him from subsequently asserting the same facts accom-
panied by additional allegations which complete the statement of a
cause of action or of defense defectively stated in the former action or
proceeding. Nor does the decision against the plaintiff on demurrer, on
the ground that the remedy he seeks is not a proper one upon the facts
charged, estop him from maintaining another and different action which
those facts are adequate to support. Kleinschmidt v. Binzel, 604.
6. RES JUDICATA-JUDGMENT on the MERITS.-If the first suit was dis-
posed of for defects in the pleadings or parties, or a misconception of the
form of the proceeding, or a want of jurisdiction, or on any ground
which did not go to the merits of the action, the judgment will prove
no bar in another suit. Kleinschmidt v. Binzel, 604.
7. RES JUDICATA-BURDEN OF PROOF.-IT MUST CLEARLY APPEAR from the
record in a former cause, or by proof by competent evidence consistent
therewith, that the matter as to which the rule of res judicata is in-
voked as a bar was, in fact, necessarily adjudicated in the former ac-
tion. If there be any uncertainty on this head in the record the whole
subject matter of the action will be at large and open to new conten.
tions, unless such uncertainty is removed by extrinsic evidence showing
the precise point involved and determined. Kleinschmidt v. Binzel, 604.
6. RES JUDICATA-UNCERTAIN GROUNDS OF JUDGMENT.-A Judgment FOR
the Defendant upon a Demurrer Specifying that the complaint
does not state facts sufficient to constitute a cause of action, and that
there is a misjoinder of causes of action and of parties, merely means
that the court finds some one of these causes of demurrer is good, and
not that all are found good; and, in the absence of evidence that the
judgment was upon the merits, it cannot constitute a bar to a subse-
quent action based upon the same facts. Kleinschmidt v. Binzel, 604.
9. A COLLUSIVE JUDGMENT IS OPEN TO ATTACK whenever it may come into
conflict with the rights or the interests of third persons, as fraud is
not a thing which can stand even when robed in a judgment. Atlas
Nat. Bank v. More, 274.
10. CONCLUSIVENESS.-A judgment, so long as it stands, imports absolute
verity as to every proposition of law and fact essential to its existence
against all parties to it. Shultz v. Shultz, 320.
11. IF A JUDGMENT OR DECREE IS PROCURED THROUGH THE FRAUD OF
EITHER OF THE PARTIES OR BY COLLUSION OF BOTH, for the purpose of
defrauding some third person, he may escape from the injury thus at-
tempted by showing, even in a collateral proceeding, the fraud or col.
lusion by which the judgment or decree was obtained. A judgment will
not be upheld against the creditors of the judgment debtor if it is not
founded on an actual debt or other legal liability due or enforceable at
the time of its entry. A third party whose rights are affected may
prove that there was no debt from the judgment debtor. Atlas Nat.
Bank v. More, 274.
12. RIGHT TO RECOVER DAMAGES FOR OBTAINING.-So long as a judgment
obtained by fraud stands, a party thereto cannot maintain an action
to recover damages for so obtaining it, as a recovery in such action
would operate as an impeachment of the first judgment. Shultz v.
Shultz, 320.
13. ACTION TO IMPEACH.-A party to a judgment obtained by fraud can
avail himself of that fraud only in a direct proceeding to vacate and
set aside the judgment, and not in an action to recover damages on the
ground that such judgment was fraudulently obtained.
Shultz ▼
Shultz, 320.
14. IMPEACHMENT OF, FOR WANT OF JURISDICTION OF SUBJECT MATTER—
ESTOPPEL.-A judgment may always be impeached for want of juris-
diction of the subject matter appearing upon the face of the judgment.
Hence, a judgment foreclosing a mortgage of lands particularly described
by reference to the section, township, and range of the government
survey, and which judgment further erroneously recites that such lands
are situated in the county in which the foreclosure action was brought,
does not estop the judgment debtor, when the judgment is sought to be
enforced, from asserting in an injunction suit to restrain a sale that the
mortgaged premises are situated in another county, and that the court
was without jurisdiction to render such judgment. Rogers v. Cady,
101.
15. OPENING AND SETTING ASIDE - APPEARANCE. - A judgment regular
on its face, without evidence of defense to it on the merits, cannot
be opened or set aside on the ground that the appearance for the de-
fendants was unauthorized, if that fact is not admitted or proved.
Swartz v. Morgan, 786.
16. JUDGMENTS ON VOID PROCESS. - A judgment by default, based on the re-
turn of an officer made outside the state, and shown to be invalid under
the laws of that state, is null and void. Russell v. Grant, 563.
17. SETTING ASIDE-WANT OF JURISDICTION.--A judgment cannot be set
aside for want of jurisdiction of the person of the defendant when the
findings upon which it is based show that it was rendered upon a valid
record of service made in good faith. Thompson v. McCorkle, 334.
18. EQUITY WILL SET ASIDE OR ANNUL FOR FRAUD, WHEN.-It is only
for fraud extrinsic or collateral to the matter in issue, and tried in an
action, and not or a fraud in an action upon which the judgment was
rendered, that a court of equity will set aside or annul a judgment for
fraud. This rule is based upon the principle that there must be an end
of litigation. Fealey v. Fealey, 111.
19. VACATING FOR EXCUSABLE NEGLECT.
The defendant is entitled to
have a judgment vacated on motion on the ground that it was re-
covered against her through her excusable neglect, when it appears
that she was vigilant from her first knowledge of the action, that she
employed an attorney to defend it in the state wherein it was pending
and of which she was a nonresident; that she forwarded to him a
verified answer; and that he refused to file it because she did not
accept a compromise negotiated by him and refused to open letters
addressed to him and forwarded by her and her counsel from her place
of residence. She cannot be regarded as inexcusably negligent, though
she received a letter from the attorney stating that unless she accepted
the terms of the compromise he would have nothing more to do with
the case and would not file the answer, when she afterward wrote to
him explaining that the compromise had never been authorized by her
and requesting him to file the answer. She could not anticipate that
he would refuse to open and read her letter. Simpkins v. Simpkins,
641.
20. VACATING FOR UNAVOIDABLE CASUALTY.-The serious sickness of an
attorney's wife is an unavoidable casualty, excusing his nonattendance
at court at the time his client's case is set for trial, and is ground for
setting aside a judgment rendered at that time dismissing the action
for want of prosecution, if the client has a meritorious cause of action,
and has not been guilty of laches. Leaming v. McMillan, 26.
21. ACTIONS UPON.-A party who has recovered a joint judgment upon a
joint and several claim may thereafter maintain an action upon the
judgment against either of the judgment debtors Olson v. Veazie,
855.
22. JUDGMENTS OF SISTER STATES-ACTIONS UPON-INTEREST.—In an action
upon a judgment rendered in another state interest may be recovered
thereon, although the judgment sued on does not of itself purport to
bear interest, and there is no proof of a statute of such state authoriz.
ing the collection of interest on judgments rendered therein. Olson v.
Veazie, 855.
23. JUDGMENT OF ANOTHER STATE-HOW PROVED.-The judgment of a court
of another state, if authenticated as provided by the act of Congress,
must be received in evidence; but it is admissible here if authenticated
according to the statute of this state, though such authentication may
not be as full as that required by the act of Congress. In re Ellis' Ee-
tate, 514.
24. EFFECT OF DELAY IN ENFORCING.-One who does not attempt to en-
force a judgment until more than three years have elapsed after its
entry ought not to complain if, in the mean time, he has lost any rights
by reason of his inaction. Rogers v. Cady, 101.
See EXECUTORS AND ADMINISTRATORS, 9-11; JUSTICES OF THE PEACE; MAR-
Biage and DIVORCE, 3-6; PARTNERSHIP, 9; PROCESS.
JUDICIAL NOTICE
See EVIDENCE, 4-6.
1. VALIDITY OF AGREEMENT TO MAKE JOINT BID. — An agreement to
make a joint bid at a judicial sale, although it may indirectly have
the effect of keeping others from bidding, is not illegal unless it is
intended to avoid competition. Hence, in the absence of any fraudu-
lent or illegal intent or purpose, an agreement whereby one of several
persons is authorized to bid for their common benefit on property
about to be sold at sheriff's sale is not invalid. Gulick v. Webb, 720.
2. COMBINATION TO MAKE JOINT BID. —A combination between several
persons holding liens against real property sold at sheriff's sale, no one
of whom is able financially to bid individually at such sale, whereby
one of such persons, by attorney, bids in the property for himself and
the other lienholders, is not forbidden or contrary to law, and does not
vitiate the sale. Gulick v. Webb, 720.
8. SALE TO COMBINED BIDDERS WILL BE UPHELD, WHEN.-A judicial sale
to an association of persons formed for an honest purpose and with an
honest intent, not with a view of stifling competition as to bids, but to
enable them to compete where, without combining, they could not do
so, will be upheld and completed. Gulick v. Webb, 720.
See EXECUTORS AND ADMINISTRATORS, 4.
1. PRACTICE.-A COURT WILL RECOGNIZE WANT OF JURISDICTION even if
no objection is made, for, if the court is without jurisdiction, it is pow.
erless to act in the case. State v. Van Beek, 397.
2. JURISDICTION OF INFERIOR COURTS-CONCLUSIVENESS OF RECORD-EVI-
DENCE TO IMPEACH.-The record of a court of inferior or limited juris-
diction is given the same verity as that accorded the record of a court
of general jurisdiction, only after it is shown that the inferior court
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