CHARTER. wealth, for the regulation of its affairs, the manAS AMENDED BY THE GRAND LODGE, K. OF B., AT agement of its property, the maintenance of good AN ADJOURNED STATED MEETING, JULY 15, order and harmony among its members in their 1885. relation to the corporation, and the enforcement Section 1. The name of the corporation shall of the payment of assessments, dues and other inbe "The Knights of Birmingham," and its mem-debtedness to the corporation, and it may provide bership shall be composed of such master Masons means for the enforcement of such by-laws by as are now or may hereafter be duly elected and fines, suspension or expulsion from membership. received into any subordinate lodge of K. of B., Sec. 7. There shall be a board of directors, to in accordance with the forms, rules and by-laws be composed of one member from each subordinate lodge, who shall be elected annually as pro of the association. Sec. 2. The purpose of this corporation shall vided by the by-laws of the grand lodge, whose be the maintenance of a society for the mutual powers and duties shall be defined and regulated benefit and protection of its members, and to pro- by the said by-laws. BY-LAWS. ARTICLE XVIII. Sec. 1. Upon the death of a member of this vide, from moneys collected therein, such sums as may be fixed by the by-laws, to be paid over upon the death of any member to such person or persons as the deceased may have designated to receive the same, as appears on the books of the lodge of which he was a member; if no designa- order, the sum to be paid to the representative tion has been made, then to his widow; if no wid- of the deceased member shall be one dollar for ow survives, then to his child or children; in de- every member in good standing, provided the fault of the foregoing, then to his legal represen-amount so paid does not exceed one thousand tatives. dollars. ARTICLE XIX. GRAND LODGE FUND. Sec. 3. The principal place of business of said corporation shall be in the city of Philadelphia. Sec. 4. The existence of said corporation shall be perpetual. It shall have succession by its cor- The fund collected in accordance with Articles porate name, subject to the power of the General XIV. and XVIII. shall be paid to such person Assembly to revoke its charter according to law. or persons as the deceased may have designated It shall have power to maintain and defend to receive the same, as appears on the books of against judicial proceedings. It shall have power the lodge of which he was a member; if no desto make and use a common or corporate seal, ignation has been made, then to his widow; if no and alter the same at pleasure. It shall have pow-widow survives, then to his child or children; in er to hold and transfer such real estate and per- default of the foregoing, then to his legal represonal property as the purposes of the corporation sentative. may require, and to that end to set aside from moneys collected such amounts as the corporation may deem necessary; provided, that the clear yearly value or income of the real estate shall not exceed twenty thousand dollars. It shall have power to enter into any obligation necessary for the transaction of its ordinary affairs. Sec. 5. This corporation shall be controlled and governed by a Grand Lodge, consisting of Sir Chiefs and Past Sir Chiefs of the several subordinate lodges connected therewith; together with such other persons as the by-laws may direct. The Court entered judgment for the plaintiff, and defendant appealed, assigning for error this action of the Court. C. B. D. Richardson and C. H. Downing, (R. 0. Moon with them), for appellant. The designation of a creditor was a proper one. Maneely v. Knights of Birmingham, 115 Pa. 305. This organization is exempt from the operation of the Act of 1893 by its very terms. Adolph Eichholz, for appellee. This association is subject to the Act of 1893. Sec. 6. Said Grand Lodge shall have power to Penna. Railroad v. Duncan, III Pa. 362. institute and charter subordinate lodges, subject The interest of the beneficiary did not become to these presents. It shall have power to appoint vested until his death, and until that time it was and remove such officers and agents as the busi-a mere expectancy, subject to change by either ness of the corporation may require, subject to the member or the rules of the society, or the the by-laws, and may allow them a suitable com- Acts of the Legislature. The change or limitation pensation. It shall have power to make by-laws, of the rights of the beneficiaries is not subject to which shall not conflict with the Constitution and objection as impairing vested rights or the oblilaws of the United States and of this Common-gation of contracts. Niblack on Benef. Societies, 405, 409. families, heirs, blood relations, affianced husband or affianced wife of or to persons dependent upon the member." November 9, 1896. WILLARD, J. From the The language of this statute is too plainly prosfacts submitted and the argument of counsel, we pective in its operation to admit of any doubt. are to determine the law and decide whether If applicable to this association, it clearly was not the Court below erred in entering judgment in intended to affect the power of appointment exfavor of the appellee for the sum of $495.36, or ercised and fixed before its passage. It provides whether judgment should have been there enter- what shall be a lawful designation and to what ed in favor of the appellant. Mr. Wolpert, on persons and relatives the designation shall apply October 17, 1892, made his designation on the after its passage. There is not a word in the probooks of the Association to whom his lawful visions of that Act requiring any member to benefit fund should be payable at the time of his change his designation already made or making death. This designation, when made, was in void any designation previously made. Had Mr. strict conformity with the express objects, the Wolpert changed his beneficiary and made a new constitution and by-laws of the association. This designation after the passage of the Act, then is not controverted. It is true Mr. Wolpert had a new question would be presented for our conthe right to change this act of designation at sideration, but as he did not do so, it is sufficient any time before his death, but he did not do so, in this case to interpret this statute as applied to "A statute should be interand at that time the designation was unchanged. the facts before us. The designees claimed of the fund only the preted so as to operate prospectively only, unless amount of their just debts against Wolpert and the language is so clear as to preclude all questhe moneys advanced by them from time to time, tions as to the intention of the Legislature": to pay his dues, allowing his widow to draw the Taylor v. Mitchell, 57 Pa. 209. balance. That the designation thus made was legitimate and proper when made, is clearly established in Maneely, Trustee, v. Knights of Birmingham of Penna., 115 Pa. 305. Applying the well known rule in the case before us, we hold that the provisions of the Act of April 6, 1893, did not affect the designation made by Mr. Wolpert in October, 1892. We are not called upon to construe the effect The assignments of error are sustained, the of the Act of April 6, 1893, as ex post facto legis- judgment is reversed and judgment is now enlation impairing the rights of the parties to the tered in favor of the appellant, costs to be paid alleged contract under consideration, nor are we by the appellee. called upon to decide the applicability of that Act to the order or association known as the Knights of Birmingham. What we do decide Hill v. Egan. W. M. S., Jr. October 19, 1896. Judgment-Power to vacate-Granting new trial. and determine is that the Act in question is not Nov. '96, 39. judgment was entered on the verdict; an appeal was Held, that it was too late to open the judgment, and that the Court exceeded its authority in granting the rule. Where a motion for a new trial is granted, the reasons should appear of record. ment of benefits in case of sickness, disability or death of its members, subject to their compliance with its constitution and laws, in which the fund. from which the payment of such benefits shall be made, and the expenses of such association shall be defrayed and shall be derived from assess- Appeal of Leopoldina Hill, plaintiff, from the ments or dues collected from its members, and in judgment of the Common Pleas No. 3, of Philawhich the payment of death benefits shall be to delphia County, in an action against John J. Egan for damages for false arrest and malicious From this order the plaintiff appeals. The quesprosecution. tion here is whether the Court below had power The facts are set forth in the opinion of the to vacate the judgment which had been entered, Superior Court, infra. J. Campbell Lancaster, for appellant, cited- Mathers's Executor v. Patterson, 33 Pa. 485. Conrad v. Insurance Co., 81* Id 66. DeForrest Ballou, for appellee. and grant a new trial under the circumstances. While there is no limit to the time within which a Court may open or vacate a judgment entered by default or confession, it is otherwise with respect to a judgment obtained adversely. It was Isaid in Mathers v. Patterson, 33 Pa. 485: "There must be a time when the power of a Court to open its judgments, obtained adversely, ceases. In England, it ends with the term at which judgIt will be seen by an examination of the cases ment is signed. True, there is a reason for this cited by defendant, so far as our Courts are con- which does not exist with us, arising from the pecerned, that the only reason why they will not culiar manner in which the record is there made permit a verdict or judgment to be interfered with up and kept; but the rule of the English Courts after the term in which it is granted, is the danger would seem to have been recognized as existing it may be to titles or to those who may have ac- here: Catlin v. Robinson, 2 Watts 379; Stephens quired some interest which would thereby be v. Cowan, 6 Watts 513." In Oil Co. v. Carothers, affected. As none exists here, there is not a rea- 63 Pa. 379, the plaintiff obtained a verdict Ocson why it should be enforced. tober 18, 1867, on which the judgment was entered October 23. March 21, 1868, a rule for a new trial was granted, which was made absolute Sept. November 9, 1896. SMITH, J. On the trial of 5. The Supreme Court said: "No such motion this cause in the Court below, February 6, 1893, could be made or granted so long after trial and the plaintiff obtained a verdict. February 8, verdict. Nor could it be done with a judgment the defendant moved for a new trial. March 7, standing in full force, under any conceivable cirthe motion was refused. March 14, judgment was cumstances. If such a proceeding could be tolerentered on the verdict. March 19, the defendant ated, litigation would but begin where it ought to took an appeal to the Supreme Court. March 5, end, with the judgment." In King v. Brooks, 72 1894, the appeal was quashed, for the reason that Pa. 363, the Supreme Court said, citing various the record showed nothing that could be re-authorities: "Every Court has power to open a viewed. Hill v. Egan, 160 Pa. 119. judgment in order to give the parties a hearing or But as the trial occurred before the announce- trial. In the case of judgment by confession or dement of the decisions in Rosenthal v. Ehrlicher, fault, there is no limit of time to the exercise of this 154 Pa.396; Connell v. O'Neil, 154 Pa. 582; Com. power, but in the case of judgments entered adex rel. v. Arnold, 161 Pa. 320, and "the failure of versely, after a hearing or trial, it is settled that counsel to have the record put in proper shape it must be done before the end of the term at for review was owing to erroneous ideas of prac- which they are entered." This view is further tice, which were corrected in those decisions," sustained in Conrad v. Ins. Co., 81* Pa. 66, and the Court added: “We think this is a very proper Lance v. Bonnell, 105 Pa. 46. It is unnecessary case for relief by the Court below, by the allow- to cite anything further. It has also been repeatance of a bill of exceptions nunc pro tunc, or in edly held that where a motion for a new trial is such other form as it may in its discretion deem granted, the reasons should appear of record. best." Nothing on this point is shown on the record in Upon the facts in the case, however, apparently this case. undisputed, the Supreme Court said that the It is clear from abundant authority that the plaintiff was not entitled to recover. The defend- Court below exceeded its authority in granting ant, however, assuming that the plaintiff would the rule. It was too late to open the judgment press the case no further, allowed the matter to and the order making absolute the rule to open rest, upon the assurance that, should the plaintiff is reversed and set aside. proceed, the Court would give relief by a bill of exceptions or a new trial. March 20, 1895, the plaintiff issued a scire facias against the bail in error. April 15, the defendant obtained a rule for a new trial nunc pro tunc. December 12, 1895, this rule was made absolute, and proceedings on the scire facias suspended. W. C. S. Nov. '96, 93. October 13, 1896. fendant: 'You pay the bills when I am dead, and Kelly v. Shillingsburg. "The defendant, upon the 19th of February, Affidavit of defence - Sufficiency of - General 1894, paid to Welsh & Naulty, undertakers, for declaration of a defence. Defendant having undertaken to set forth in detail in his affidavit the facts upon which he relies for his defence, is presumed to have included all the facts, and these failing, when taken together, to show a legal defence to the claim set forth in the plaintiff's statement, he cannot save himself by the general declaration, at the close of the affidavit, that he has a just and true defence to the whole of the plaintiff's claim. burying Kelly, the sum of $134, and has their receipt, for which he claims credit. "Defendant further states that, as of September term, 1893, C. P. No. 2, No. 596, Daniel Webster Dougherty took out letters of administration upon the estate of William Kelly and, thereupon, brought an action as of the above number and term to recover from defendant the sum of $3000, which was the purchase price of the boat and the oyster beds. The case came on for trial, and a Appeal of William Shillingsburg, defendant, verdict was rendered for the defendant on the from the judgment of the Common Pleas No. 1, ground that Kelly had created in him, Shillingsof Philadelphia County, in an action of assumpsit, burg, an express trust as to the application of the in which James Kelly was plaintiff. $3000, and that the administrator had no claim. The statement of claim set forth that William whatever against him. A motion was made for a Kelly, the brother of plaintiff, on July 24, A. D. new trial, which was refused, whereupon Dough1893, executed a bill of sale to William Shillings- erty, the administrator, took the case to the Suburg, the defendant, by which, in consideration preme Court and, after argument, on Monday, of the sum of $3000, he sold, transferred and as- April 6, 1896, the Supreme Court handed down signed to the defendant all his, the said William an opinion affirming the judgment of the Court Kelly's, interest in a certain schooner or oyster below, sustaining the contention of Shillingsburg, boat, called the Michael Martin, and to certain the defendant, that he was trustee for Kelly for oyster beds in the Delaware Bay; that the defend- the application of the $3000. The defendant, by ant did not pay William Kelly the said $3000, or reason of the action of the said Dougherty, adany part thereof, but was instructed by the said ministrator, in bringing his suit, has been put to William Kelly to pay to the plaintiff, after the great trouble and expense, and hath been obsaid William Kelly's death, the sum of $346 out of liged to lay out and expend divers large sums of the said sum of $3000. William Kelly died Sep- money, to wit: the sum of $175 for counsel fees tember 12, 1893. and other necessary expenses, and he therefore Defendant, in his affidavit of defence, admitted claims to be entitled to set off, as against any the death of William Kelly, his ownership in his claim made in the present suit, the sums of money lifetime of the oyster boat and the sale, and fur- which he, the defendant, hath been obliged and ther averred as follows: compelled to lay out and expend in and about "Kelly directed the defendant to give Mrs. the defence of the trust which had theretofore, Kate Turner the sum of $1000; to Miss Maudetta to wit, on the twenty-fourth day of July, 1893, Shillingsburg, the sum of $1000, and to pay all been created in him by said William Kelly, dethe fixed charges against the boat for supplies, ceased. etc., and for advances of money that had been "And the defendant avers, and therefore states, made by the defendant, which were then thought that, in point of fact, he hath laid out and exto be, as stated by him, about $600, and, there- pended the said sum of $11.64, the said sum of upon and assuming that what Kelly had said was $31.16, and the sum of $134, and the further sum correct, defendant, then and there and at that time of $175, making a total of $351.80, which is an executed the paper, upon which plaintiff claims amount in excess of plaintiff's claim, as sued for to recover, dated July 24, 1893, but, in point of in this case. fact, it turned out that the bills of Wilson & "The defendant avers, and therefore states and Crawford on the vessel, instead of being $391 verily believes, that he has a just and true dewere $402.64, which the defendant paid, the differ- fence to the whole of plaintiff's claim as sued upence being $11.64 for which the defendant claims on, and that the plaintiff in this suit is not encredit. Another bill came in against the schooner titled to recover a dollar until all claims and defrom the Greenwich Pier Railway Company, mands in the nature of debts against decedent's amounting to $31.16, for which the defendant estate are fully paid and discharged. claims credit and for which he has a receipt. "All of which foregoing facts the defendant ex"After the papers had been executed and the pects and believes he will be able to prove upon notary public had gone away, Kelly said to de- the trial of the cause." George Bradford Carr, for appellant. as directed, to Mrs. Kate Turner, one thousand The trust alleged in the affidavit of defence was dollars. He paid or agreed to pay to his daughsustained in Dougherty v. Shillingsburg, 175 Pa. 57. Hutton McLaughlin, I Super. Ct. 642. ter, Maudetta Shillingsburg, one thousand dollars. He agreed to pay charges against the boat for supplies, etc., amounting to about six hundred dollars. There is no allegation in the affidavit The affidavit of defence, filed in case at bar, that he paid charges amounting to the full sum comes strictly and clearly within all the authori- of six hundred dollars. He alleges that he paid ties upon the subject of what constitutes a suffi- Wilson & Crawford $402.64, and the Greenwich cient affidavit of defence, and the averment, "that Pier Railway Company $31.16. This would leave the defendant had a just and true defence to the a sufficient sum in his hands, after paying the whole of plaintiff's claim and that plaintiff was obligation upon which this suit is brought, to pay not entitled to recover a dollar until all claims all the funeral expenses and more than the plainand demands in the nature of debts against deced- tiff's share of the alleged expenses of sustaining ent's estate were fully paid and discharged;" and the trust. But was he bound to pay the funeral the further averment "that defendant had laid out expenses; or, admitting that there were legal and expended in and about decedent's estate, in claims against William Kelly in excess of the six payment of his (decedent's) debts, a sum in ex-hundred dollars alleged by him to be the amount cess of the amount sued for," and specifies the of charges against the schooner, was the defenamounts, raised an issue of fact that was not in dant bound to pay them? We think not. There the province of the Court to decide. Barker v. Fairchild, 168 Pa. 246. Lane 7. Penn Glass Sand Co., 172 Id. 252. D. Webster Dougherty, for appellee. Cosgrave v. Hamill, 173 Pa. 207. even is no allegation in the affidavit of defence that he had no other estate. If there were such an estate, all legal claims against the decedent outside of what were expressly fixed by him to be paid by the trustee should have been paid by the administrator. If there were no such estate, it should have been distinctly alleged in the affidavit. The alleged declaration set forth in the affidavit of defence, that "after the papers had been executed and the notary public had gone away, Kelly said to defendant, 'You pay the bills, when I am dead, and I will be buried from Mrs. Turner's,' if it be admitted that the bills referred to were funeral expenses, can scarcely be regarded as November 9, 1896. BEAVER, J. In view of the raising such a trust as would justify the defendant change in the time set for the hearing of appeals in paying them at the expense of the appellee. for Philadelphia and of the circumstances of the What bills? "Pay the bills" out of what funds? case, which were made known to us at the hear-So much of imagination and inference must enter ing, we overrule the motion to quash the appeal into the answer to these questions that they canand determine it upon its merits. not be allowed to frustrate and nullify a clear and If the defendant has a good defence to the express trust evidenced by the written obligation claim of the plaintiff, it is not set out in the affi- of the appellant to the appellee. See Class v. davit which we are called upon to consider. Kingsley, 142 Pa. 636. If any of the amounts Dougherty v. Shillingsburg, 175 Pa. 56, deter-directed to be paid by the trustee, for which he mines the validity of the trust created by Wil- gave his obligation, were to be scaled down, liam Kelly in his lifetime and fixes the obligations of the trustee, who is the appellant here and the defendant in the Court below. The ground upon which the Supreme Court based its decision in the case above mentioned was the fact that the trust had been so far executed in the lifetime of Kelly by reason of the obligations which the appellant gave to the plaintiff among others, that it would have been inequitable to rescind the The appellant, having undertaken to set forth trust. The defendant admits that he had in his in detail in his affidavit the facts upon which he hands as the proceeds of the schooner and oyster relied for his defence, is presumed to have inbed in Delaware bay, the sum of three thousand cluded all the facts, and these failing, when taken dollars. Out of this he paid or agreed to pay, together, to show a legal defence to the claim set there is no reason why that given to the brother should bear the entire burden of funeral and other expenses and those of Mrs. Turner and the daughter of the appellant should be paid in full. So far as the affidavit itself is concerned, however, as we have already said, we cannot discover from it that the appellant has paid more than the amount of the funds entrusted to him. |