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The circuit court made the following findings of fact:

amount sued for, on the 8th day of October, | the letter to Judge Gautney was prepared and 1917. The judgment recites the appearance signed by her. of the plaintiffs by their attorney, J. F. Gautney, and of the defendant by its attorneys Hawthorne & Hawthorne, and the offer of the defendant to confess judgment in the sum of $200. The judgment record then con-going described case is submitted to the undertains the following:

"The court, after making careful inquiry as to the extent of the injury, the character of the injury, and the manner of the injury, finds that $200 is a fair remuneration for the injury received, including loss of time by the plaintiff Prentiss Heathcock, the damage to the plaintiff Mary E. Heathcock, on account of the loss of services of her son, the disfigurement of the hand of Prentiss Heathcock, and for pain and suffering.

"It is therefore considered, ordered, and adjudged by the court that the plaintiffs, Prentiss Heathcock, by his next friend and mother, Mary E. Heathcock, and Mary Heathcock, have and recover of and from the defendant, Truman Cooperage Company, the sum of $200 and all costs in and about this suit expended."

"On this day the motion pending in the fore

signed upon oral, documentary, and record evidence, from which the court finds that on the 25th day of August, 1917, Edwin Prentiss Heathcock was an employé of defendant company and was injured while working in the defendant's manufacturing plant; that said Edwin Prentiss Heathcock was at the time 17 years of age and resided with his mother, his nearest of kin, and who was to some extent dependent upon the earnings of the said Edwin Prentiss Heathcock for support; that on the 26th day of September, 1917, Mrs. Mary Heathcock, the mother and nearest of kin of the said Edwin Prentiss Heathcock, entered into a settlement with the defendant, agreeing to accept the amount agreed upon in full settlement of all rights as to each of said parties, the mother and son, flowing from the injuries so received, and, for the purpose of carrying out and making effective such agreement, it was agreed that Judge J. F. Gautney be designated as the attorney for the said Mrs. Mary Heathcock, in her own right and as of next of kin of said minor, Edwin Prentiss Heathcock, and that suit According to the testimony of Mrs. Mary should be instituted in the Greene county cirHeathcock, neither she nor her son were presed for such agreed amount; that proper comcuit court, in which judgment should be renderent when the case was tried in the circuit court, and no witnesses testified in the case. She admitted receiving the $200, but stated that she did not instruct Judge Gautney to bring the suit and did not know that suit was to be filed as the result of her negotiations with the claim agent of the cooperage company. She stated that she did not remember writing the letter to Judge Gautney and only understood that the $200 was paid to help her out on account of the injury to her

On the 10th day of October, the amount of the judgment was paid to Mrs. Heathcock, and she executed a receipt to the cooperage company therefor.

son.

According to the testimony of Judge Gautney, he acted on the authority of the letter from Mrs. Heathcock. No witnesses were present in court, and no agreement was had between him and the attorneys for the coop

erage company.

plaint was prepared by attorneys for the defendant, and delivered to Judge Gautney, who filed the same in the Greene circuit court, and at the same time the entry of defendant was filed, and the matter submitted to the court upon the pleadings and statement of counsel, and the judgment rendered for the amount agreed upon,

and there was no fraud or undue influence in making said compromise settlement.

"The court further finds that on the 2d day of October, 1917, and prior to the institution of the suit in the Greene circuit court, the minor, Edwin Prentiss Heathcock, caused letters of guardianship to be issued out of the probate court of Poinsett county, in which county he then resided and where the injury occurred, and that such guardian was the duly apthe date of the institution of such suit, and of pointed and acting guardian of said minor at the rendition of the judgment therein, and that said guardian did not appear in said proceed

According to the testimony of J. C. Hawthorne, he represented the cooperage comings. pany and prepared the complaint in the case. He stated that no witnesses were introduced at the trial, and that the judgment was rendered after he and Judge Gautney had made a statement of the matter to the court.

According to the testimony of other witnesses introduced by the defendant, Mrs. Heathcock agreed that $200 would be a fair compensation for the injuries received by her son, and this agreement was made after she fully understood the extent and character of his injuries. The matter was also fully understood by Edwin Prentiss Heathcock. His mother understood it was necessary that judgment should be rendered in the circuit court for that amount, and for this reason

The court finds that the interest of the said Mrs. Mary Heathcock was effectually foreclosed by the agreement so made, and the judgment recording the same, but the minor, Edwin Prentiss Heathcock, was not represented in said proceedings, and that his right of action was not foreclosed thereby.

"It it therefore by the court ordered that the motion to set aside the judgment in so far as cock be and the same is set aside, and said it affects the rights of Edwin Prentiss Heath

motion is denied to Mrs. Mary Heathcock."

Judgment was entered in favor of Edwin Prentiss Heathcock in accordance with the findings of fact made by the court, and the defendant has appealed.

Hawthorne & Hawthorne, of Jonesboro, for to bring a suit by guardian, although one appellant.

Appellee, pro se.

HART, J. (after stating the facts as above). It will be noted, from the findings of fact made by the circuit court, that its judgment proceeded upon the erroneous idea that the minor could not bring a suit by his next friend while he had a legally appointed guardian. In the case of Miles v. Boyden, 3 Pick. (Mass.) 213, the Supreme Court of the State of Massachusetts stated the English law and the changes by statute in this respect as follows:

"At common law infants were required to sue and to defend by guardian. Co. Lit. 135 b, note 220. The law has not been altered as to the manner in which they are to defend. But by the statute of Westm. 1, c. 48, infants were authorized to sue by prochein ami in an assise, and Westm. 2, c. 15, in all other actions. * It was a cumulative remedy, leaving it optional for them to sue either by guardian or by next friend. Young v. Young, Cro. Car. 86; Goodwin v. Moore, Id. 161."

This brings us to a consideration of our own statute on the subject. Section 6021 of Kirby's Digest reads as follows:

"The action of an infant must be brought by his guardian or his next friend. Any person may bring the action of an infant as his next friend; but the court has power to dismiss it, if it is not for the benefit of the infant, or to substitute the guardian of the infant, or another person, as the next friend."

In the construction of this statute in St. Louis, Iron Mountain & Southern Ry. Co. v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. Rep. 65, the court held that, where a suit was brought for a minor by a foreign guardian who was not qualified to sue in this state, the court was right in appointing some one as next friend to look after the minor's interests in the suit, instead of dismissing it. To the same effect, see Parker v. Wilson, 98 Ark. 553, 136 S. W. 981. Again, in Watts v. Hicks, 119 Ark. 621, 178 S. W. 924, the court held that a minor by his next friend might file a remonstrance and appeal from an order of the probate court directing a sale of the land of the minor upon the application of the guardian who had left the state.

But so far as we are advised the extent of the authority given by this statute has never been judicially determined. It is evident, from the language used in the section above quoted, that an infant is not always bound

may be in existence. The infant may sue by his next friend whether he has a guardian or not. Ordinarily, the guardian is the proper person to represent his ward in all legal proceedings, and, if objection had been taken at the proper time that there was a guardian by whom the suit should have been filed, it may have been that the court, in the exercise of a sound discretion, might have determined that the suit should have been changed and presented in the name of the minor by his guardian instead of as it was commenced. It is the business of the court to see that no one stands between the infant and the protection of his rights, and for this purpose, although a minor may, under our statutes, institute a suit either by. his next friend or by his guardian, the court may, in the exercise of a sound discretion, determine whether or not it shall proceed as commenced.

tion of our statute, see 21 Cyc. 191; Hooks As sustaining this construcV. Smith, 18 Ala. 338; Williams v. Cleaveland, 76 Conn. 426, 56 Atl. 850; Patterson v. Pullman, 104 Ill. 80; Holmes v. Field, 12 Ill. 424; Deford v. State, 30 Md. 179; Baltimore v. Norman, 4 Md. 352; Burke v. Burke, 170 Mass. 499, 49 N. E. 753; Price v. 497 (Gil. 473) 10 Am. Rep. 166; Stewart v. Phoenix Mutual Life Insurance Co., 17 Minn. Sims, 112 Tenn. 296, 79 S. W. 385; Robert Robson v. Benjamin Osborn, 13 Tex. 298; Thomas v. Dike, 11 Vt. 273, 34 Am. Dec. 690.

The recitals of the record show that, in the suit of the minor by his next friend against the cooperage company for damages, the circuit court made a judicial investigation of the merits of the controversy and of the character and extent of the minor's injuries before it allowed, the judgment to be rendered. This is in accordance with the rule laid down in Rankin v. Schofield, 71 Ark. 168, 66 S. W. 197, 70 S. W. 306, 100 Am. St. Rep. 65, and other cases on the subject decided by this court. The record, also, shows that the court made a specific finding of fact that no fraud was practiced upon the minor in the matter; but the judgment of the trial court in setting aside the judgment in favor of the minor in the suit for damages is based wholly on the theory that the minor could not prosecute that suit by his next friend while he had a guardian in existence.

It follows, from the views we have expressed above, that the court was wrong in so holding, and for that error the judgment must be reversed, and the cause will be remanded for a new trial.

SOVEREIGN CAMP, WOODMEN OF THE
WORLD, v. WILSON. (No. 246.)

that the policy had been forfeited, and an action was commenced by the beneficiaries against appellant in the circuit court of

(Supreme Court of Arkansas. Nov. 18, 1918.) Craighead county on July 9, 1917, and sum

mons was served on the clerk of the local organization at Jonesboro. Mr. Nichols, the clerk of the local organization, inadvertently failed to send in the copy of the summons to the home office, or to notify that office of the pendency of the suit, and at the succeeding September term of the Craighead circuit court judgment by default was rendered against appellant. The officers of appellant's organ

1. INSURANCE 814-MUTUAL BENEFIT INSURANCE-SERVICE OF PROCESS-STATUTE. Though a fraternal society did not comply with Acts 1917, p. 2087, § 17, within the 30 days prescribed, by designating the commissioner of insurance as its agent for service of process, where it did so thereafter, subsequent service on the clerk of a local lodge, in compliance with the superseded statute (Kirby's Dig. 8ization, or "Sovereign Camp," as it is termed,

4378), was not proper.

2. JUDGMENT

495(2)—JUDGMENT RENDER-
- VOID CHARACTER

ED WITHOUT NOTICE PRESUMPTION. Though Kirby's Dig. § 4424, provides that judgments rendered without notice shall be void, a presumption of regularity attends a judgment of a superior court of general jurisdiction, which can be controverted only by showing there was no notice, and that a meritorious defense existed which could have been asserted.

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4. INSURANCE 755(3) MUTUAL BENEFIT INSURANCE - FORFEITURE OF POLICY RESUMPTION OF EXTRAHAZARDOUS OCCUPATION. Where member of benefit society was engaged in extrahazardous occupation, and never changed, but society voluntarily reduced assessment as if he had, and it was paid for years, after member's death society cannot insist on forfeiture by failure to pay assessments based on extrahazardous occupation on the ground member was in default in failing to give notice of resumption of such occupation, which he had never abandoned.

Appeal from Circuit Court, Craighead County; J. T. Coston, Special Judge.

Action by the Sovereign Camp, Woodmen of the World, against Gladys T. Wilson, guardian. From judgment for defendant, plaintiff appeals. Affirmed.

De E. Bradshaw, of Omaha, Neb., and Rhoton & Helm, of Little Rock, for appellant. Lamb & Frierson, of Jonesboro, for appellee.

McCULLOCH, C. J. Appellant is a fraternal society incorporated under the laws of another state, and Purd Tatham was a member of appellant's local organization or society at Jonesboro at the time of his death, being the holder of a benefit certificate in the sum of $2,000, payable to his wife and child. Appellant refused payment on the ground

did not discover that the action had been commenced and the judgment had been rendered until a day in January, 1918, and at once filed its complaint against appellees in the said court to set aside the default judgment on the ground that there had been no valid service of process summoning appellant to answer in the action. Appellant tendered with its complaint an answer to the original action setting forth as a defense to the action the alleged forfeiture of the policy or benefit certificate. Appellees filed their answer to the complaint, and the court heard the matter on the pleadings and the testimony introduced, and rendered judgment refusing to set aside the former judgment of the court, from which an appeal has been prosecuted to this court.

The statute in force at the time of the commencement of the original action of appellees against appellant prescribing the method of service of process on fraternal insurance societies is section 17 of the act of March 28, 1917, which had the emergency clause and went into immediate effect. Acts

1917, p. 2087. The section referred to reads

as follows:

"Every society, whether domestic or foreign, now transacting business in this state shall, within thirty days after the passage of this act, Iand any such society hereafter applying for admission shall, before being licensed, appoint in writing the commissioner of insurance and his successors in office to be its true and lawful attorney on whom all legal process in any action or proceeding against it shall be served, and in such writing shall agree that any lawful process against it which is served upon such attorney shall be of the same legal force and validity as shall continue in force so long as any liability if served upon the society and that the authority remains outstanding in this state. Copies of such appointment, certified by said insurance department shall be deemed sufficient evidence thereof and shall be admitted in evidence with the same force and effect as the original thereof might be admitted. Service shall only be made upon such attorney, must be made in duplicate upon the commissioner of insurance, or, in his absence, upon the person in charge of his office, and shall be deemed sufficient service upon such society: Provided, however, that no such service shall be valid or binding against any such society when it is required thereunder to file its an

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

swer, pleading or defense in less than thirty days from the date of mailing the copy of such service to such society. When legal process against any such society is served upon said commissioner of insurance he shall forthwith forward by registered mail one of the duplicate copies prepaid and directed to its secretary or corresponding officer. Legal process shall not be served upon any such society except in the manner provided herein."

Appellant on May 25, 1917, filed with the commissioner of insurance of this state a written instrument appointing that officer and his successors to be the attorney of appellant on whom legal process might be served as specified in the statute quoted above. The statute in force prior to the enactment of the new statute just referred to provided:

That in actions against fraternal societies the service should be on "the chief officer, or in case of his absence, the secretary of the subordinate lodge or society through which the policy was issued or obtained, or on the chief officer, or in case of his absence on the secretary of any subordinate lodge in this state of such fraternal society." Kirby's Digest, § 4378.

[1] The act of 1917 supra prescribes the exclusive method of service of process on fraternal societies, but it is contended on behalf of appellees that it had no application to their action against appellant for the reason that the latter did not comply with the statute within the period of 30 days prescribed therein, and that the old method of service of process continued to be the legal method of obtaining service on these societies until the next period under the statute for compliance, which would have been in April, 1918. We do not agree with the argument of counsel for appellees that the old method of service continued in force after compliance with the terms of the new statute by appellant, notwithstanding such compliance was not within the 30-day period specified in the statute. Appellant had no right to continue to do business in the state after the expiration of the 30 days from the passage of the statute, except upon compliance with its terms, and it was subject to penalty during the period of omission. But the terms of the statute were later complied with, and thereafter service on the commissioner of insurance was the only legal method of serving process.

Whether or not the continuance by appellant of its business in the state during the period of omission bound appellant by any service of process on the commissioner of insurance, notwithstanding its failure to file the required certificate of appointment, we need not now decide. At the time the action of appellees against appellant was commenced the certificate of appointment had been filed, and service on the commissioner of insurance was the only way to get service on the society.

[2] The contention of appellant is that the judgment was absolutely void because the service of process was not in accordance with the method prescribed by the statute. Our statute (Kirby's Digest, § 4424) provides that all judgments rendered without notice shall be absolutely void, but there is a presumption of regularity attending a judgment of superior courts of general jurisdiction (Boyd v. Roane, 49 Ark. 397, 5 S. W. 704),' which cannot be controverted except by showing that there was in fact no notice, and that there existed a meritorious defense to the action which could have been asserted if notice had been given (State v. Hill, 50 Ark. 458, 8 S. W. 401; Quigley v. Hammond, 104' Ark. 449, 148 S. W. 275).

[3, 4] This brings us to a consideration of the question whether or not appellant brought itself within the principle just announced by introducing proof sufficient to make out a prima facie case of a meritorious defense to the original action which might have been asserted if notice had been given. Knights of Maccabees of the World v. Gordon, 83. Ark. 17, 102 S. W. 711; Quigley v. Hammond, supra. After careful consideration of the testimony, our conclusion is that appellant failed to show the defense that there was a forfeiture of the policy, and that the court was correct in refusing to set aside the judgment in the original action.

Tatham became a member of appellant's local organization at Jonesboro in the year 1897, and paid his dues regularly up to the time of his death. He was a railroad switchman at the time he joined the society, and that occupation was, under the by-laws of the society at the time Tatham joined, treated as an extrahazardous one, and an additional amount was added to the monthly assessment. The constitution and laws of the order contained a provision on that subject as follows:

"Change of occupation by any member to a prohibited one shall not invalidate his certificate, but his rate of assessment shall be increased thereafter by adding twenty cents to each assessment upon each one thousand dollars or less named in his certificate while he is so engaged."

The constitution was subsequently changed so as to make the assessment 30 cents additional on prohibited occupations. In the year 1901 the supreme officer of the society changed Tatham's assessment by striking out the additional amount for the prohibited risk, and thereafter Tatham's rate of assessment was fixed according to the preferred class, and he continued to pay the lower assessment as long as he lived. The proof shows that Tatham's assessments were always paid by his wife in his absence. The change in the rate of assessment was made on the theory and under the belief that Tatham had given up his occupation as railroad switchman and had become a farmer. The

proof shows that he was a railroad switch-1 in default in failing to give notice of a reman at the time of his death, and the for- sumption of his extrahazardous occupation feiture of the policy is claimed on the ground for the reason that he had never abandoned that he failed to notify appellant's officers of the resumption of the occupation of railroad switchman so as to charge him with the additional rate on the extrahazardous risk. The by-law of the order under which this defense is put forward reads as follows:

"If any member engages in any of the occupations or businesses mentioned in this section, he shall within thirty days notify the clerk of his camp of such change of occupation, and while so engaged in such occupation shall pay on each assessment thirty cents for each one thousand dollars of his beneficiary certificate in addition to the regular rate. Any such member failing to notify the clerk and to make such payments as above provided shall stand suspended, and his beneficiary certificate be null and void."

it. He joined the society as an extrahazardous risk, and correctly declared his occupation in his application. He never changed that occupation for aught that appears in the proof in this case, and he was under no obligation to give any notice of his continued pursuit of that occupation. Appellant cannot take advantage of its own error to defeat the payment of the policy, since it has accepted payment of the assessments demanded. Judgment affirmed.

LIND v. STATE. (No. 248.)

(Supreme Court of Arkansas. Nov. 18, 1918.)

at all, and the statute had no application on a to the marriage ceremony there was no marriage resumption of the prosecution by reason of desertion of the female.

2. SEDUCTION 52-HARMLESS ERROR-IN

STRUCTIONS.

In a prosecution for seduction accused could not have been prejudiced by the reading of Kirby's Dig. § 2044, to the jury, prosecution having been resumed after being suspended by reason of a forced marriage, the undisputable testimony showing that accused, without any legal cause, willfully abandoned the prosecutrix.

46-CORROBORATION.

The weakness of appellant's case as presented on the motion to set aside the original judgment was that it failed to show that 1. SEDUCTION 54-SUSPENSION OF PROSETatham ever quit the extrahazardous occu- CUTION-MARRIAGE. pation of railroad switchman, and subse- Kirby's Dig. § 2044, providing for suspension quently resumed that occupation. Mr. Yates, of prosecution for seduction where defendant one of the supreme officers, testified that he marries the female, is for the benefit of the acdirected the reduction of Tatham's assess-cused; and where accused was forced to submit ment when he was notified in the year 1901, either by the local clerk at Jonesboro or by Tatham himself, that he had quit the occupation of switchman and had become a farmer, but this testimony was clearly incompetent, for it failed to show that Tatham had in fact notified the order of a change of his occupation. Mr. Yates did not produce any evidence of notice by Tatham himself that he had changed his occupation. Mr. Parsons, who was clerk of the local camp in the year 1901, when the reduction of Tatham's assessments was made, testified that he had no personal knowledge of Tatham having 3. SEDUCTION changed his occupation, and Mr. Nichols, In seduction case, where accused admitted who became clerk shortly after the change the sexual act, further corroboration of the prosecutrix as to that was unnecessary. was made, testified that he had no personal knowledge of the matter, except that he remembered that Tatham moved out on a farm, but that, for aught he knew to the contrary, Tatham continued his occupation as switchman, coming back and forth from his farm near Jonesboro to pursue his occupation as switchman. It devolved on appellant to prove its case, or at least to introduce testimony making out a prima facie defense to the action, before it could ask for the setting aside of the original judgment. Knights of Maccabees of the World v. Gordon, supra. If Tatham never changed his occupation at all, and appellant's supreme officers voluntarily reduced Tatham's assessment, and same were paid throughout the many years which Tatham continued to be a member, appellant cannot now insist on the forfeiture by reason of failure to pay assessments based on the extrahazardous risk. Tatham was not

4. CRIMINAL LAW ~519(1)

ADMISSIBLE IN EVIDENCE.

CONFESSIONS

A confession having once been voluntarily made, the fact that appellant afterwards repeated the confession under duress did not destroy or lessen the effect of the voluntary confession. 5. CRIMINAL LAW 535(2) · CONFESSION CORROBORATION.

Although, under Kirby's Dig. § 2385, one could not be convicted of seduction upon his confession alone, yet, when combined with testimony of prosecutrix establishing the corpus delicti, it is sufficient.

6. SEDUCTION 46-CORROBORATION-CONFESSION.

Although, under Kirby's Dig. § 2043, one cannot be convicted of seduction upon the uncorroborated testimony of the prosecutrix, yet, when combined with a confession made by the accused out of court, is sufficient to convict.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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