IOWA STATE TRAVELING MEN'S ASS'N v. MOORE, 73 F. 750

SHOWALTER, Circuit Judge, after the foregoing statement of the case, delivered the opinion of the court. By

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article 6 of the constitution, above quoted, the §2 assessment, not to exceed §5,000, “shall he paid t.o the beneficiary named in the certificate of such deceased member, or to his heirs or legal representatives,” etc. Under the

section quoted from the bylaws, the directors are to prescribe the form of the application for membership.

The applicant is required to state in such application, among other things, “the full name and address- of the person * * * to whom he desires, in case of decease, * * to have his death loss paid,” and “the relation such person sustains to himself, together with answers to such other questions bearing upon the identification of such person as may be propounded.” In the proposition, application, or declaration submitted by M'oore, and which, according to its terms, formed “the basis of membership between” himself “and the said association,” besides his promise to “comply with the requirements of the constitution and by-laws” and his warranty as to the facts stated, he, pursuant to the

section quoted from the by-laws, nominated his wife, Maggie M. Moore, as the person to whom, in the event of his death by accident, the sum, not to exceed §5,000, as pro vided in

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article 0 of the constitution of said association, should become due and payable. The record shows no provision fixing the terms of the certificate to be issued to a member. The document set forth in the statement which precedes this opinion, being in form a certificate by the association that Moore is a member, and entitled to all the benefits accruing from such membership under the constitution and by-laws, must, of course, be read in connection with the constitution and by-laws, and also in connection with the application for membership made pursuant to the by-law quoted, in order to manifest the contract.

In consideration of the member’s engagement as to the facts staled in Ms application, and his promise therein “to comply with the requirements of the constitution and bylaws,” one of which requirements is that he will pay assessments as they may thereafter be levied, the association agrees to make to him certain periodical payments of money in case of his disablement by accidental hurt, and, within certain limitations, in the event of his death as the result of accident, to pay a sum, to be ascertained in a specified way, but not exceeding $5,000, to the beneficiary appointed by him, or, in default of such appointment, to “his heirs or legal representatives.” What is meant by the words “heirs or legal representatives,” in

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article 6 of the constitution of said association, — whether said words mean anything other than that the widow and next of kin shall be the beneficiaries in case the member survive the appointee specified in his application, — is not a question here. Since Maggie M. Moore was in fact named as the beneficiary, and since she has survived the member who so appointed her, the obligation of the association, touching the $5,000, if such obligation be otherwise made out, is to her, and to her alone.

By the very terms of the contract, that fund, if recovered, could not be assets of, nor can the cause of action to recover it belong to, the estate of John H. Moore. Said cause of action did not vest in his personal representative. Without theorizing on the matter, the rule to this effect in such case is settled. Out of the many decisions which might be cited, Highland v. Highland, 109 iLL. 366, 375, in connection with the text and citations in 1 Chit. PL. pp. 203-205, will be sufficient. Counsel for this plaintiff in error do not seriously contest the. proposition that Maggie M.

Moore is the person in w'hom the cause of action, if there be any, is vested. They seek to avoid the point. They urge, for instance, that the declaration may be construed as showing Maggie M. Moore in her own right to be plaintiff, and this on the ground that in the special count she is called “Maggie M. Moore, administratrix of the estate of John H. Moore, deceased,” instead of “Maggie M. Moore as administratrix of the estate of John H.

Moore, deceased.” But the common counts are added, and in each of them the cause of action is alleged to be an indebtedness to “said plaintiff’s intestate.” Besides, in the special count profert is made of the letters of administration, and the promise alleged is “to pay to the personal representative of said John H. Moore.” If we could say that the words in the special count, “administratrix of the estate of John H. Moore, deceased,” and the words, “the personal representative of said John H. Moore,” are descriptfo persona?, and that said count shows a cause of action in Maggie M.

Moore, the record would fail to support the judgment. There is a statute in Illinois which saves a judgment from arrest or reversal on error, if, joined with counts that are bad, there be one count which is good, but there is no statute which does away with the common-law rule that a judgment cannot stand on good counts misjoined in the declaration. See 1 Chit. PI. 204, and cases there cited; also, Id. 205, and cases there cited. To say that the declaration here can be construed as showing the cánse of action to be in Maggie M. Moore, otherwise than as administratrix of the estate of John H.

Moore, deceased, is out of the question. It is, again, urged that if this judgment be affirmed, and its collection enforced in this suit, a court of equity will enjoin the prosecution of an action by Maggie M. Moore against this plaintiff in error. A share of this judgment distributed to Mrs. Moore as the widow of John H. Moore, deceased, would come to her, not in extinguishment of any debt due to ber from this plaintiff in error, but as part of the estate of her deceased husband. The creditors, if there be any, of that estate, would be first entitled.

Subject to their rights, the proceeds of said judgment would be divided between the widow and the children of John II. Moore. A portion only could, in any case, be distributed to Mrs. Moore. But a judgment at law is as binding on the equity side of the court as on the law side. Upon what theory — there being no fraud or mistake of fact in the case — would a court of equity enjoin as claimed, except that the judgment in favor of the estate was erroneous? A court of equity is not a court of error. It has no appellate jurisdiction over a court of law.

The grounds upon which a court of equity would interfere as suggested by counsel are not clear; nor do we see why this plaintiff in error should be driven to a court of equity, any more than we see why a judgment should be rendered in favor of the estate of John H. Moore, deceased, against a defendant who owes nothing to that estate. Counsel for defendant in error quote the following as from the opinion of the supreme court of Michigan in peet v. Great Camp, 47 N.

W. 119: “The bringing of an action in the name of an administrator of a deceased member of a mutual benefit association, on a certificate of membership payable to the member’s heirs, is a harmless error, where the administrator is the .sole heir of such deceased person.” This is the language of the syllabus, not of the opinion. It appeared that there were no creditors, and that the plaintiff administrator was himself the sole distributee of the estate. But where, even in such a case, did the court get the right or the authority to render a judgment in favor of a plaintiff who confessedly had no cause of action?

In the case at bar it does not appear that Moore left no creditors, hut it does appear that he left children. The trial court was asked to instruct the jury “that plaintiff, who-sues as administratrix of the estate of John IT. Moore, deceased, is not entitled to the benefits under the certificate; of membership admitted in evidence, and defendant’s constitution and by-laws.” This instruction was denied, — the court: declaring that upon certain findings of fact, which need not be here specified, “plaintiff would be entitled to recover under the declaration in this case,” — and plaintiff in error excepted.

Baid ruling is assigned as error. We do not deem it appropriate to discuss other points in the record. The judgment is reversed and the cause remanded, with, directions to set aside the verdict and award a new trial.