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Cooper v. Pacific Mutual Life Insurance Company.

a statement on appeal, as the same object is accomplished without the expense and unnecessary labor of such motion. Thus, a party who wishes only to have the questions of law arising during the progress of the trial reviewed, may introduce the rulings, with sufficient evidence to point them, into his statement on appeal, or pre pare a bill of exceptions as he proceeds, and so bring them to the attention of the appellate court. This is a practice which, under similar statutory provisions, has not only received the sanction, but commendation, of the Supreme Court of California. Brown v. Tolles, 7 Cal. 398; Harper v. Minor, 27 Cal. 107; Carpenter v. Williamson, 25 Cal. 158.

Whether a case should be withdrawn from the jury and the plaintiff non-suited, is purely a question of law. When properly made, it is simply a decision that the law affords no relief upon the evidence adduced, admitting every fact and conclusion which it tends to prove. It is not a decision upon the weight of evidence where it is conflicting, but that it is not sufficient to justify its submission to the jury. If it were not a question of law, a non-suit could never be granted; for the judge can only decide questions of law. But independent of reason, such is undoubtedly the law. Pratt v. Hull, 13 John. 335. If so, this point is settled, for there is no difference between this and any other law question as to the manner in which it may be submitted to the appellate court. Being simply a question of law, it could be brought to this court as well by bill of exceptions, or by statement on appeal, as by appeal from an order on motion for new trial.

Was the court warranted in granting the non-suit ? Clearly not. The plaintiff introduced evidence going to prove that an application was made to the agents of defendant for a policy of insurance on the life of the plaintiff's husband ; that at the time the application

l was made, fifty dollars was paid, according to the regulations of the company, which was to be applied on the first year's premium, provided the defendant should conclude to make the insurance. The application thus made was forwarded to the proper office of the company; a policy was in due time made out and forwarded to the agent in this state for delivery; but the insured having died before

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Cooper v. Pacific Mutual Life Insurance Company.

it was delivered, the agent refused to deliver it, although demanded, and the balance of the premium offered to be paid.

Here is undoubtedly sufficient proof to establish a contract for a policy. The application for a policy by the assured, with the payment of a portion of the premium, and acceptance of the risk by the defendant, left nothing to be done but the delivery of the policy and the payment by the plaintiff of the balance of the premium, which, it appears, was not required by the rules of the company until the completion of the transaction. These facts show a valid contract for a policy between the parties. The moment the company concluded to make the insurance, the fifty dollars paid to its agent became its property, without any further action on its part. It was paid upon the condition that if the company concluded to make the insurance, it should be applied in payment of the premium ; when, therefore, the risk was taken, it became the property of defendant, and at the same time the assured became entitled to the policy. Thus there was the acceptance of the application by the company, and the payment of a portion of the premium, as a consideration therefor, by the plaintiff, which is all that was necessary to make a valid contract between the parties. Such contracts are as available to sustain an action for the amount of the insurance as if the policy itself had been issued. In Kohne v. The Insurance Company of North America, 1 Washington C. C. 93, a person applied to the agent of the company to effect an insurance on goods on board a ship, and settled all the terms of the insurance, but did not receive a policy. It was, however, soon afterwards filled up and executed, and about the same time the company received the intelligence of the loss of the vessel. On a subsequent day the assured called to pay the premium and receive the policy, but the company refused to deliver it, objecting that the agreement was inchoate, and consequently it had the right to retract. Judge Washington, however, said: “It appears everything was agreed upon, and although, on account of the fever then in the city, he did not wait to receive the policy, yet it was immediately after he left the the office filled up and signed by the president, and has been produced on the trial; the contract therefore was not inchoate, but

Pratt v. Rice.

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perfected before notice of the capture by either party.' So it has frequently been held that the premium may be received on a mere contract to insure, where no policy has been made out; and such, we take it, is the law. Carpenter v. The Mutual Safety Insurance Company, 4 Sandf. Ch. 408; Hamilton v. Lycoming Insurance Company, 5 Barr, 339; Andrews v. The Essex Fire and Marine Insurance Company, 3 Mason C. C. R. C; McCullough v. Eagle Insurance Company, 1 Pick. 278; Palm v. Medina Insurance

; Company, 20 Ohio, 529; Tuylor v. Merchants' Fire Insurance Company, 9 Howard, U. S. 390.

The non-suit must be set aside.
Judgment reversed. It is so ordered.

C. B. PRATT, RESPONDENT, v. H. F. RICE et als. APPELLANTS.

.

Motion “Not OF COURSE” ORDINARILY TO BE ON Notice. Where an ex parte

motion was made in 1871 for the docketing, nunc pro tunc, of a judgment rendered in 1866, against defendants who had appeared ; and it became necessary on the application to determine several questions of fact: Held, that such a motion should not be entertained except on notice to the opposite party, and that the refusal to vacate an order obtained under such circumstances

was error.

NOTICE OF Motion, WHEN REQUIRED. When the nature of a motion, involving the

determination of facts, is of a kind to prevent the performance of some act which, if performed, might be productive of irreparable injury, and it becomes desirable that the party to be affected should have no previous intimation thereof, it may be granted an affidavit without notice to the opposite party ;

but when there is no such danger, notice should be given. Right of Party to Notice Of Motion. If on a motion there is no good cause

for haste or concealment, and facts are to be found in the ascertainment of which the opposite party is deeply interested, such party has a right to notice and an opportunity to be heard.

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APPEAL from the District Court of the Second Judicial District, Ormsby County.

It appears

that a judgment and decree of foreclosure were rendered in this action on March 19th, 1866, for $4,000 principal,

Pratt v. Rice.

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$1,882.66 interest, accruing interest and costs. An order of sale was issued, and in September, 1866, the mortgaged property was sold for $50. On March 6th, 1871, upon ex parte application of plaintiff, the following order was entered : “Upon filing the motion of A. C. Ellis, Esq., attorney for plaintiff, and the affidavit of Thomas J. Edwards, it is upon the motion of A. C. Ellis, Esq., attorney for the above named plaintiff, made in open court this sixth day of March, A. D. 1871, and upon the aforesaid affidavit of Thomas J. Edwards, filed and used upon the hearing of said motion, hereby ordered that the clerk of this court enter a credit upon the judgment and decree rendered and entered in the above cause on the nineteenth day of March, 1866, of fifty dollars, the amount of the proceeds of a sale duly made under and by virtue of an alias execution issued out of this court in the above entitled cause on the

day of — 1866, and that he docket as of date September 12th, 1866, a judgment in favor of plaintiff and against the defendants, in accordance with law and said decree, for the sum found due to the plaintiff from the said defendants in said decree, after giving the said credit of fifty dollars."

The affidavit of Mr. Edwards showed that the sale had taken place on September 11th, 1866 ; that the property had sold for only $50; and that afterwards the order of sale had been mislaid, and consequently had never been returned to the clerk's office.

R. S. Mesick, for Appellant.

I. The order of the district court should have been set aside on motion of defendants, because — 1. The application was a special motion. 3 Dan. Ch. 2 ed. 1854. 2. It called for a consideration and determination of substantial rights of defendants. The sheriff having made no return, it would seem not unreasonable to allow defendants an opportunity of knowing how property bought for $5,000, and mortgaged for $4,000, came to sell for $50. Obviously, defendants were entitled to notice of the motion. It was not competent for the plaintiff to take the proceeding ex parte, nor for the court to hear and determine the matter upon an ex parte application. Practice Act, Sec. 499; 1 Burrill's Prac. 345; Tidd's Prac. 512; Stevens v. Ross, 1 Cal. 96; Hungerford v. Cushing,

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Pratt v. Rice.

8 Wis. 320; 1 Paige, 39; 4 Paige, 551; 5 Mich. 283 ; 22 Wis. 131.

II. The showing made by plaintiff, in support of his application, was insufficient to justify the order; no fact was sworn to positively; the affidavit of Edwards did not show that anything remained due on the decree ; there was no return by the sheriff of his proceedings on the order of sale, nor any fact presented obviating the necessity of such return.

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A. C. Ellis, for Respondent.

I. The affidavit of the sheriff served all the purposes of a technical return, and was equivalent to a substituted return, or order of sale. The order of sale might have been substituted without notice. Benedict v. Cozzins, 4 Cal. 381; Bryant v. Stidger, 17 Cal. 270; 7 Cow. 470; Burns, Assignee, v. Burns, 7 Conn. 470.

II. Whether there has been any sale of the mortgaged property under the decree, whether it has been conducted substantially in compliance with the law, what amount the property brought, whether the other property of defendants should be burdened with a lien, and how it is that property mortgaged for $5,000 should only bring $50—all these things arise upon the return itself. And yet the defendant has no right to question its truth or falsity, nor to make these inquiries, until after the judgment is docketed. If the sheriff has made a false return, the party may commence suit against him and his bondsmen.' If he makes a mistake, or commits an error in his return, it may be corrected by the court, which always has control of its process.

III. The parties had their day in court; jurisdiction had been acquired; and this proceeding is of course, no notice being required either by the code or any rule of court. 2 Wendell, 254; Close v. Gillespy, 3 John. 525; 3 Cowen, 39; 17 Pick. 106; 2 Foster, 27; 2 Gillman, 584.

By the Court, WHITMAN, J.:

On the nineteenth of March, 1866, a decree of foreclosure was rendered in the district court against appellants, who had duly ap

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