Phillips v. Junior Order United American Mechanics, 175 N.C. 133 (1918)

Feb. 27, 1918 · Supreme Court of North Carolina

175 N.C. 133

LUCY PHILLIPS v. JUNIOR ORDER UNITED AMERICAN MECHANICS.

(Filed 27 February, 1918.)

1. Insurance — Fraternal Orders — Pleadings—Evidence.

The complaint in an action on a membership life insurance policy by the wife alleging the loss of the policy, her inability to find it, and that her husband had been dropped on the defendant’s roll at the time of his death, without charge or cause, and and against his protest, is insufficient without proper allegation and proof of the lost policy, that recovery was not barred by the contract or lapse of time, and that he had illegally been dropped, and had regularly tendered his fees.

2. Appeal and Error — Briefs—Time of Filing — Rules of Court.

Upon motion of appellant aptly made at the call of the district to which the case belongs, the appellee’s brief will be dismissed if not filed on the preceding Saturday by noon, and disposed of without argument by appel-lee, unless for good cause shown, the time should be extended. Rule 36.

3. Insurance — Fraternal Orders — Pleadings—Demurrer Ore Tenus.

Where the wife of a deceased insured brings action individually and not as administratrix, to recover upon the life insurance policy of her husband, she must allege that she was the beneficiary named therein, or the action will be dismissed ore tenus.

Appeal by plaintiff from Allen, J., at October Term, 1917, of Chat-ham.

B. H. Hayes for plaintiff.

Douglass & Douglass for defendant.

Clare, C. J.

This action was brought by the plaintiff upon a mem- ' bership life insurance policy issued to her husband by the defendant. The complaint did not set out the policy, but averred that she was unable to find it and that though her husband had been dropped from said lodge and was not on its rolls at the time of his death, he was dropped without charge or cause and against his protest. This would have sufficed, if there was proper allegations and proof to set up the lost policy and to prove, if not barred by the contract in the policy or lapse of time in any way, that he was illegally and wrongfully dropped from the roll of his lodge, and that he tendered the fees regularly.

But the plaintiff failed to allege in her complaint that she was the beneficiary named in the policy and she did not bring this action as administratrix. The Court, therefore, properly sustained a demurrer ore tenus that the complaint did not state a cause of action. The Court, in its discretion, would doubtless have permitted the plaintiff to amend, Revisal, 506; Fidelity Co. v. Jordan, 134 N. C., 236, but she did not ask leave to do so and thé action was dismissed. Whether the plaintiff may not institute a new action upon a complaint with proper averments is not now before us.

The plaintiff moved to dismiss the appellee’s brief filed in this action. Tbe Rules of Court No. 34 (164 N. C.) prescribe tbat if tbe appellant’s brief is “not filed by 12 o’clock, noon, on Tuesday of tbe week preceding tbe call of tbe district to wbicb tbe cause belongs, tbe appeal will be dismissed, on motion of appellee, wben tbe call of tbat district is begun, unless, for "good cause shown, tbe Court should give further time to print brief.”

Rule 36 prescribes tbat unless tbe appellee’s brief “shall be filed by 12 o’clock, noon, on Saturday before tbe week of tbe call of tbe district to which tbe cause belongs, . . . tbe cause will be beard and disposed of without argument from appellee, unless, for good cause shown, tbe Court shall give further time to present brief.” In this-case, tbe brief of tbe appellee was not filed by tbe time required, and good cause not being shown, the motion to strike out tbe same was allowed, and in tbe absence of a brief, we could not bear oral argument.

This Court has repeatedly held tbat our rules are made for good cause and must be observed. Walker v. Scott, 102 N. C., 487; Wiseman v. Comrs., 104 N. C., 330; Edwards v. Henderson, 109 N. C., 83; Calvert v. Carstarphen, 133 N. C., 25, and numerous cases there cited, which have been cited since; Vivian v. Mitchell, 144 N. C., 477; Lee v. Baird, 146 N. C., 363; Porter v. Lumber Co., 164 N. C., 397; S. v. Goodlake, 166 N. C., 436.

It happens in this case tbat tbe appellee succeeds in tbe appeal, though by failure of counsel to observe tbe rule, their client and the Court were deprived of tbe benefit of an argument from them. It is none tbe less proper to call attention to tbe rule in this case and'the necessity tbat tbe Court is under of enforcing tbe rules, to prevent a similar penalty in a cause where it might be important to tbe client and to tbe Court that tbe case should be fully presented.

Affirmed.