# Petition for A Writ of Certiorari — Supreme Lodge, Knights of Pythias v. Meyer

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1924
- **Citation:** 265 U.S. 30

## Text

SUPREME LODGE KNIGHTS OF PYTHIAS,
é Petitioner, eo

v8.
é}

GEORGE 0. MEYER,
Respondent.

i
PETITION FOR WRIT OF CERTIORARI AND PETI.. ‘
TIONER’S BRIEF.

.

Waxp H. WATSON,
Sou H. ESAREY, —
ater for Petitioner,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1922.

SUPREME LODGE KNIGHTS OF PYTHIAS,

Petitioner,

No.
vs.

GEORGE O. MEYER, Respondent.

PETITION FOR WRIT OF CERTIORARI.

To the Honorable, The Supreme Court of the United States:

The Supreme Lodge Knights of Pythias, in support of
this, its petition for a writ of certiorari to be directed to
the Supreme Court of the State of Nebraska to review a
judgment rendered by said Supreme Court of the State of
Nebraska on the 4th day of October, 1922, and from the
judgment of said Supreme Court of the State of Nebraska
affirming and confirming said judgment, by its order over-
ruling your petitioner’s petition for a rehearing which was
duly filed within the time provided by the statute of said
state and which was duly considered and decided by said
court on the 20th day of November, 1922, affirming the
judgment and decree of the District Court of Otoe County
in the said State of Nebraska, for the respondent herein,

Peaeiaa sare ye ROARS IT IR PAINS ORE ERS kT PORE RE

2

who was the plaintiff, in the sum of $————— respectfully
shows: ;

1. That this action was begun by a complaint on behalf
of the respondent against the petitioner upon a certificate
of insurance, alleging that the respondent had executed to
the assured a certificate of insurance in the sum of $2,000;
that the assured maintained his good standing in the order
and that the respondent was designated in said certificate as .
the beneficiary thereof and that the petitioner agreed to pay
said sum of $——————- upon satisfactory proof of the death
of the assured; that the assured had done all things required
of him to be performed, and that the defendant refused to
pay sa d insurance or any part thereof. Judgment was de-
manded for the amount of the certificate together with at-
torney’s fees.

2. That the defendant, your petitioner, duly filed its
answer to said complaint alleging that it duly issued the
certificate sued upon; that said defendant was duly au-
thorized to transact business in the State of Nebraska. That
said defendant was created by a special act of Congress and
that its powers were given to it by virtue oi id act of
Congress; that it had been acting under said powers and
by virtue thereof and that said powers can only be deter-
mined finally by the courts of the United States.

Said answer further admitted that the assured had died
and further alleged that said certificate was not an abso-
lute insurance on the life of the assured but that it was
conditional and subject to the regular payment of monthly
premiums to become due and to all changes in the laws of
said defendant that might thereafter be enacted under and
by virtue of said special act of Congress.

PEPE ELE LEO MINES CREE ER APN Rad OI PAN TSE oneal

3

Said answer further alleged that neither the assured or
any other person paid the assessments and dues required
from said assured under the terms of said certificate from
January, 1911, until the death of the assured. That by
reason of the neglect and refusal of the assured to pay said
assessments and dues said certificate became forfeited under
the terms of the statutes of said defendant.

Said answer further alleged that under and by virtue
of the right and power of said special act of Congress and
the acts amendatory thereof the defendant promulgated and
made an increase of rates of insurance and the amount re-
quired to be paid by the assured and of those of his class,
which rates became effective January 1, 1911, and of which
said assured was duly notified and informed; that said in-
crease of rates was necessary for the maturing of the cer-
tificates held by the assured and all others who held certifi-
cates of insurance therein; that the defendant had the au-
thority and power, to enact, adopt and pass the legislation
and by-laws increasing said rates. That said rates were
obligatory upon the assured therein as well as all others
who were members of said Insurance Department; that said
increase of rates and the action taken therein by said de-
fendant were in the nature of internal regulations and man-
agement of the Insurance Department of said defendant, and
were binding and obligatory upon the entire membership
of said Insurance Departments regardless of where they
lived, or the State in which they resided, and no member or
class of members had any greater right or privilege than
any other member or class of members, and that notwith-
standing the duty and the obligation of the assured to pay
the said rates, he purposely failed, neglected and refused to

4

pay any part of said dues or assessments from January 1,
1911, until his death April 11, 1916.
Said answer further alleged that the right and the power

of the defendant to increase said rates were expressly ad-
judicated and determined and the validity of such rates was
settled by a judgment and decree of the United States Dis.
trict Court for the District of Indiana, in a suit therein
brought by Joseph Holt who was a member of said Insur-
ance Department and held a certificate similar in all re-
spcts to the certificate of the assured which is involved in
this action, and others on behalf of themselves and of all
other members of said Department similarly situated against
the defendant herein in which judgment it was finally de-
cided and determined that the defendant herein had the
right, power and authority to make such change and in-
crease in its rates and that said increase was reasonable,
proper and necessary, and that said defendant had a rep-
resentative form of government at the time the said rates of
insurance were increased ; that the said Holt ct al., plaintiffs
in said suit were members of said {isurance Department in
the same class as the assured herein. That said U. S. Dis-
trict Court had full power and jurisdiction of all matters
involved in said suit and of the parties thereto and that its
decision therein was final, conclusive, and res judicata of
all matters involved in said suit, among which was the
validity of the rates so fixed and the validity of all the
laws enacted in reference to the increase of rates.
It was further alleged that by reason of said judgment
and decree of said U. S. District Court for the District of
Indiana, the assured herein and his beneficiary herein are
barred and estopped from again litigating the question of
the validity of said increase of rates or the question of the

representative form of government, or the obligation of the
assured to pay said rates which questions are decisive of the
questions involved in this case; that said decision remains
in full force and effect, and is in mo manner changed, modi-
fied or reversed, and which decision adjudged and finally de-
termined that this defendant had and maintained a repre-
sentative form of government at all times and that it had
authority, right and power to increase its rates as alleged
heerin and that said increases were binding and effective on
all its members and that a failure, neglect or refusal of any
member to pay such increased rate resulted in and caused
a forfeiture of his certificate of membershin. the same hav-
ing been finally approved and affirmed by the Supreme Court
of the United States.

Said answer further alleged that said defendant claimed
the benefits of Article 4, of Section 1, of the Federal Con-
stitution guaranteeing full faith and credit to said judgment
of the U. S. District Court for the District of Indiana, and
also that it claimed the benefits of Section 905 revised stat-
utes of the United States extending the full faith and credit
clause of said Federal Constitution to the Courts of the
United States, situated within the districts of the various
states and also claims the right to have said judgment duly
credited by the Courts of the State of Nebraska that said
judgment had within the district of the United States Dis-
trict Court for the District of Indiana.

Said answer further alleged that the authority and
power of said defendant to increase its rates and that said
legislation was duly and validly enacted by said defendant at
the time it so increased its rates was adjudicated and finally
decided and determined by the Supreme Court of the United
States on June 12, 1916, in a cause therein pending on writ

—— oper _=— wo PEELE SLL BION, SOE L OE LLIGIE LLY EBA IAISG Rh osha,

6

of error from the Court of Civil Appeals of the State of
Texas, wherein the Supreme Lodge Knights of Pythias, be-
ing defendant, was plaintiff in error and Mims was de-
fendant in error; that said Mims was a member of said
fendant’s Insurance Department of the same class as the
assured herein; that said action in said Mims case was
originally commenced in the District Court of Dallas County,
State of Texas, May 19, 1911. That the plaintiff in said
cause alleged that said increase of rates, being the same
increase involved as in this action was alleged and that
the law enacting such increase was wrongfully and illegally
passed ; that the answer of the defendant therein, being the
defendant herein, alleged that said laws were just, reason-
able and necessary, and that they were duly passed in ac-
cordance with the power and authority given under the Fed-
eral Statute creating the defendant and that the plaintiff's
failure to comply with said laws caused a forfeiture of. his
insurance and his rights thereunder.

Said answer further shows that said cause was finally
decided by the said Supreme Court of the United States
which court had full power and jurisdiction over all mat-
ters involved in said suit and of the parties thereto, and
that said laws were adjudged valid and binding upon all
members of said Insurance Department, and the defend-
ant herein alleged that said decision is decisive of the rights
of the plaintiff herein, and that the plaintiff is barred and
estopped from litigating said questions or denying the con-
clusiveness of said decisions in said case.

Said answer further alleged that the application of the
assured herein and the certificate sued upon in this case were
both conditioned upon the obligation of the assured to abide
by and do all things required by the laws then in force

7

and the laws that might thereafter be enacted governing
the Insurance Department. That the claim of the plaintiff
herein is governed by and is dependent upon the defend-
ant’s charter of incorporation under said Federal Statute
and the rules, laws and regulations adopted and promul-
gated by the defendant under and by virtue of said Federal
Statute, and that the plaintiff is now estopped from denying
or controverting the right of the defendant to enforce the
rates so enacted and promulgated.

3. That the plaintiff in reply to said answer alleged that
in this action there is not involved the construction of any
Federal Statute, or any question arising under the laws of
the United States which only the courts of the United States
can determine: that the assured did not fail, neglect and
refuse to pay the assessments required under his certificate
at any time, and that his certificate did not become for-
feited.

Said reply further alleged that said defendant was not
empowered or given athority to make an increase of rates
of insurance so as to affect the certificate of the assured,
and further denied that any change of rates was made af-
fecting or which was binding upon the assured at any other
time, and further denied that any attempt to change the
rates was ineffective and that the certificate so held by the
plaintiff was in full force and effect at the death of the as-
sured, and that no adjudication was ever had in any court
binding upon plaintiff or upon the assured in his lifetime.

Said reply further alleged that in the case of Meyer v.
Supreme Lodge, which case was appealed to the Supreme
Court of the State of Nebraska and which involved the right,
power and authority of the defendant to make, change or
increase the rates of insurance, the validity of the rates

—_——— e SHIT PtP ai , FPP LANE ED NRTA RO ZOU NS

of the defendant and as to whether the defendant had a
representative form of government, which case was decided
April 30, 1920, the defendant was without any right, power
or authority to make any change or increase of its rates
and that said rates so made were void and that defendant
did not have a representative form of government; that
said judgment and opinion of said Supreme Court of the
State of Nebraska is unreversed, and in full force and ef-
fect, and is res judicata of the questions raised in the de-
fendant’s answer.

4. That the record, a certified copy of which is presented
herewith, shows no conflict of evidence the respondent re-
lying solely upon the ground that the undisputed facts com-
pel the legal conclusion that said increase of rates was in-
valid and void as to the plaintiff herein.

5. That the record shows that the assured held a cer-
tificate of insurance under date of 1885 and that he con-
tinued to pay the assessments and dues thereon until Jan-
uary 1, 1911; that he was then notified that an increase
of rates had been enacted and that thereafter said increase
of rates would be effective; that he refused to pay said in-
crease and continued to tender his former rate to the Section
Secretary whose duty it was to receive the assessment from
the members of assured’s lodge; that he continued to tender
said old rate up to the time of his death; that the defendant
refused to receive the said amount or any part thereof so
tendered, but demanded the increased amount, which the as-
sured refused to pay and denied the authority of the defend-
ant to make an increase of the rates effective as against him.
It was further shown that in March, 1911, Joseph Holt
and many others, in their own behalf and on behalf of all

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fea ate a
beeitee ose.

= Si

9

others similarly situated brought a suit in the U. S. District
Court for the District of Indiana, alleging that the legisla-
tion increasing the rates upon the members of the fourth
class of which they were members and also the insured here-
in was invalid and void and that such legislation was a vio-
lation of their rights and prayed that said legislation be
declared void and that the officers of the Insurance Depart-
ment of the defendant be enjoined and restrained from en-
forcing any part of said legislation; that an answer was
filed thereto and also a cross-complaint filed ; that the issues
so made in said cause involved the validity of all the legisla-
tion of the defendant affecting or increasing the rates of
insurance upon any and all members of said Fourth Class.

Said record further shows that said cause was referred
to a Master in Chancery to hear the evidence and to report
the facts together with his conclusions thereon; that said
Master did hear all the evidence on behalf of the plaintiffs
and of the defendant, and that he made a report to the Dis-
trict Court of his finding of facts and his conclusions there-
on; that among said facts so found were that the defendant
was created by virtue of a Federal Statute; that its Supreme
Lodge and law making body at the time of enacting said
rates was the same and created the same as when said Fed-
eral Statute was enacted creating said defendant ; that it had
at that time and at all times theretofore mentioned a repre-
sentative form of government; that it was properly acting
within the powers given to it by virtue of said act of Con-
gress being Act of June 29, 1894, 28 U.S. Statutes at large
96-97.

Said record further shows that said Master expressly
found that said increase of rates was obligatory and binding
upon all members of said Fourth Class, and that the rates

DRAINS oe bie

10

established in said legislation were reasonable, proper and
necessary for the life of said Department, and for the ma-
turing of the certificates outstanding as well as those to be
issued. Said Master reported his conclusions thereon in fa-
vor of the defendant.

The record further shows that the court after hearing
the arguments thereon and after considering the evidence
and said findings held that the Master’s findings were proper
and that his conclusions were correct, and that he thereupon
entered a decree and judgment in favor of the defendant and
against the plaintiffs.

The record further shows that exceptions were filed to
the Master's findings of facts and to his conclusions and
that said District Court overruled said exceptions and that
the plaintiffs appealed from said judgment and decree to
the Circuit Court of Appeals for the Seventh Circuit and
that said eppeal was heard by said court and that the judg-
ment of the District Court of the United States for the Dis-
trict of Indiana was affirmed on July 18, 1916, 149 C. C. A.
197, 235 Federal 883.

The record further shows that an appeal was taken from
said judgment of the Circuit Court of Appeals for the Sev-
enth Circuit, to the Supreme Court of the United States and
that said appeal was dismissed October 21, 1918, 248 U. S.
588, 63 L. ed. 434.

The record further shows that the rates in force prior to
January 1, 1911, were insufficient for the purpose and could
not mature the policies outstanding; that the Insurance De.
partment was in very embarrassing circumstances; that
the disbursements were exceeding the income and that with-
in a very few months the small surplus would have been ex-

hausted; that the rates had theretofore been increased sev-

2 Bt a Cae EIT BES KASAI Pe AE IRS RR OTF OM % ’ WES AM ft Levringes =

11

eral times and that many extra monthly assessments had
been made; that the membership was becoming restless that
the Supreme Lodge had gravely considered the matter of
increase for sometime and that they had called an expert
actuary who had examined their certificates and had ad-
vised them that the only way to prevent the destruction of
the Insurance Department was to increase the rates; that
they used as the basis of said increase the American Experi-
ence Table of Mortality and an interest assumption of 314% ;
that the rates established were based upon the attained ages
of the members without medical examination; that all were
treated exactly alike.

Said record further shows that the application of the
assured, as well as the certificate in suit contained a pro-
vision that the assured will abide by the laws in force and
by all laws subsequently enacted.

6. The court found in favor of the plaintiff for the
amount of the certificate sued upon, together with attorney’s
fees and costs. From this judgment the defendant, your
petitioner herein, appealed to the Supreme Court of the
State of Nebraska, which affirmed the judgment of the Dis-
trict Court in favor of the respondent.

7. That the questions of law for the determination by
the District Court were as follows:

(a) Was the assured, and his beneficiary, required by
the laws, to observe and obey the Supreme Statutes of the
defendant increasing the rates of insurance on the Fourth
Class, of which he was a member?

(b) Did the Supreme Lodge of the defendant have the
power, authority, and right under the Federal Statute of

12

June 29, 1894, 28 Statutes at large, pp. 96-97, to enact and
promulgate the Supreme Statutes regulating and increasing
the rates of insurance on the members of the Fourth Class?

(c) Was the Class suit by Joseph Holt and others
against the defendant in this case, the petitioner herein,
binding upon the assured herein?

(d) Did the District Court and later the Supreme Court
give full faith and credit to said decision in their decision
of the present case, as required by Article 4, Section 1, of
the Federal Constitution?

(e) Did the District Court, and later the Supreme Court
of the State of Nebraska give to the defendant therein, your
petitioner, its right, as guaranteed by Section 905, Revised
Statutes of the United States, giving effect to the judgment
of the United States Court for the District of Indiana in the
State of Nebraska the same as said judgment has in and
for the said District of Indiana.

(f) Is the judgment of the United States District Court
of Indiana res judicata of the question of representative
form of government, validity of rates and duty of members
of the Fourth Class in respect to the increase of rates.

(g) Does any member of said Fourth Class have the
right again to contest the validity of the increase of rates
in view of the decision of the United States District Court
for the District of Indiana in said class suit of Holt et al. v.
Supreme Lodge Knights of Pythias and in view of the deci-
sion of the United States Circuit Court of Appeals for the
Seventh Circuit affirming said judgment, and of the dis-
missal of the appeal therefrom by the United States Su-
preme Court.

13

8. That the facts before stated under paragraph 5 were
uncontradicted. The District Court of Nebraska held that
the said statutes increasing the rates were void as to the
plaintiff, the respondent herein, that the governing body of
the defendant was not properly constituted and that no leg-
islation enacted by the said body was valid or binding upon
any member of the Insurance Department thereof in said
State of Nebraska. That the judgment of the District Court
of the United States for the District of Indiana was not
res judicata as to any questions involved in this suit. The
Supreme Court of the State of Nebraska held that the plain-
tiff was entitled to recover on the ground that the defend-
ant did not have a representative form of government and
that all legislation enacted by said body was invalid and
void, and therefore, could not be enforced against the plain-
tiff; that said increased rates being invalid, did not affect
the assured’s right to the payment of his old rates and,
therefore, that his certificate did not become forfeited and
was valid and enforceable. That his rights were not affected
by the judgment of the United States Court either in the
Holt case or in the Mims or Smyth cases, and that those
adjudications did not affect the plaintiff’s rights.

9. The Supreme Court of the State of Nebraska in af-
firming and confirming, on rehearing its judgment and de-
cree affirming” the judgment of the District Court of Otoe
County, erred in striking down the Supreme Statutes of
your petitioner, which statutes were enacted pursuant to
and in accordance with its powers granted under the Fed-
eral Act of June 29, 1894, 28 Statutes at large, pp. 96-97,
for the reason that such Supreme Statutes have already been
adjudicated and declared valid by your Honorable Court in

14

the cases of Supreme Lodge Knights of Pythias v. Mims, 241
U. S. 574, 60 L. ed. 1179. And the case of Supreme Lodge
Knights of Pythias v. Smyth, 245 U. S. 594, 62 L. ed. 492,
and the decision in the case of Holt v. Supreme Lodge
Knights of Pythias, 149 C. C. A. 197, 235 Fed. 885.

10. That the Supreme Court of the State of Nebraska
erred in refusing to extend full faith and credit, as required
by Article 4, Section 1, of the Federal Constitution to the
judgment and decree of the United States District Court
for the District of Indiana in the Class suit of Joseph Holt
et al. v. The Supreme Lodge Knights of Pythias, wherein
suit was brought on behalf of the plaintiffs to have declared
null and void the Supreme Statutes of your petitioner in-
creasing the rates, being the same statutes involved in the
present action, and wherein said District Court of the Unit-
ed States expressly held valid and obligatory all of said
statutes.

11. That the Supreme Court of the State of Nebraska
in affirming the judgment of the District Court of said State
erred in failing to give effect, and full faith and credit as re-
quired by Article 4, Section 1, of the Federal Constitution of
the powers, rights, and privileges to your petitioner herein
as granted to it under and by virtue of the Federal Statute |
creating your petitioner, that is, the Act of June 29, 1894,
28 Statutes at large 96-97. The said statute having been
judicially construed by the Honorable Supreme Court of the
United States in the cases of Supreme Lodge Knights of
Pythias v. Mims, 241 U.S. 574, 60 L. ed. 1179, and Supreme
Lodge Knights of Pythias v. Smyth, 245 U.S. 594, 62 L. ed.
492.

RRC AT RCO Na toms pene euRiaRetAn So seen ceeeanemees _e et

15

12. That the Supreme Court of the State of Nebraska
erred in refusing to give full faith and credit, as required
by Section 905, R. S. U. S., to the judgment of the United
States District Court for the District of Indiana, which ex-
pressly adjudicated the validity of the Supreme Statutes of
your petitioner increasing its rates of insurance being the
same statutes involved in the present action.

In the case of Joseph Holt et al. v. Supreme Lodge
Knights of Pythias, which judgment and decree of said Dis-
trict Court was affirmed on appeal to the U.S. Circuit Court
of Appeals of the Seventh Circuit (149 C. C. A. 197, 235
Fed. 885).

13. The Supreme Court of the State of Nebraska in af-
firming the judgment of the District Court of Otoe County,
erred in refusing to hold that under its Federal charter, be-
ing the Federal Act of June 29, 1894, 28 Statues at large,
pp. 96-97, the governing body of said charter had the power,
right and authority to enact the legislation involved in said
action, increasing the rates of insurance upon its members.

14. That the Supreme Court of the State of Nebraska
erred in failing to give full faith and credit to the judgment
and decree of the United States District Court for the Dis-
trict of Indiana in the case of Joseph Holt v. Supreme Lodge
Knights of Pythias, the same being a class suit brought by
and on behalf of the plaintiff therein and all other members
of the Fourth Class of said Insurance Department, including
the assured in this case, wherein it was adjudged that the
the Supreme Lodge Knights of Pythias had and maintained
a representative form of government at the time of the
enactment of the Supreme Statutes involved in this case in-
creasing the rates of insurance.

16

Your petitioner insists that its defense to said action
should have been sustained and that the judgment of the
District Court of the United States of the District of Indi-
ana, should have been given the full faith and credit to
which it was entitled under Article 4, Section 1, of the Fed-
eral Constitution and of Section 905, R. S. U. S. extending
full faith and credit to the judicial acts and records of the
courts of other states, and that your petitioner's rights
under its charter were unlawfully denied to it. Your peti-
tioner presents herewith as a part of this petition its brief
showing more fully its views upon the questions involved
and also a transcript of the record of the Supreme Court of
the State of Nebraska which brief and record are made part
of this petition.

WHEREFORE, your petitioner respectfully prays that
a writ of certiorari be issued out of and under the seal of
this court, directed to the Supreme Court of the State of
Nebraska, commanding said Court to certify and to send
to this court, on a day certain to be therein designated, a
full and complete transcript of the record and all proceed-
ings of said Supreme Court in this case which was entitled
in that court, George O. Myer, Appellee, v. Supreme Lodge
Knights of Pythias, Appellant, to the end that said cause
may be reversed by this court as provided by law, and that
your petitioner may have such other and further relief or
remedy in the premises as to this court may seem appropri-
ate, and that said judgment of the Supreme Court of the
State of Nebraska be reversed by this Honorable Court.
SUPREME LODGE KNIGHTS OF PYTHIAS,

By ~ tary AAAS

President of Jnsurance Department.

tat Mas yb ¢ ° r ~~

17

State of Indiana, ae
County of Marion,

Harry Wade, being duly sworn, says that he is the pres-
ident of the Insurance Department of the Supreme Lodge
of Knights of Pythias, that he has read the aforesaid peti-
tion by him subscribed and that the facts therein stated are
true to the best of his information and belief.

~

Gg Sig tae AO A Dire Bin oe
Subscribed and sworn to before me this27_day of Jan-
uary, 1923. Z™~ Vf
Aten LA Cae
Notary Public in and for said State of
Indiana. 5
My commission expires Dec. 5, 1926.

ee eel

Attorneys for Petitioner.

IN THE

Supreme Court of the United States

Ocroser TERM, 1922.

———

SupREME LopGe KNIGHTS OF PYTHIAS, |
Petitioner.)

ve. No.

|

Grorce O. MEYER, Respondent. |

PETITIONER'S BRIEF.

The petitioner herein was created by act of Congress on
June 29, 1894, 28 U. S. Statutes at Large, pp. 96, 97, Chap.
119. Said statute is as follows:

“An Act to incorporate the Supreme Lodge of
the Knights of Pythias.

Re it enacted by the Senate and House of Repre-
sentatives of the United States of America, in Con-
gress assembled :

That Geo. B. Shaw, of the City of Eau Claire,
State of Wisconsin; William W. Blackwell, of the City
of Henderson, State of Kentucky; Walter B. Richie,
of the City of Lima, State of Ohio; Robert L. C.
White. of the City of Nashville, State of Tennessee ;
Philip T. Colgrove, of the City of Hastings, State of
Michigan, and Tracy R. Bangs, of the City of Grand
Forks. State of North Dakota, officers and members
of the Supreme Lodge Knights of Pythias, and their
successors, be and they are hereby incorporated and

20

made a body politic and corporate in the District of
Columbia, by the name of “The Supreme Lodge
Knights of Pythias,” and by that name it may sue
and be sued, plead and be impleaded, in any court
of law or equity, and may have and use a common
seal, and change the same at pleasure, and be entitled
to use and exercise all the powers, rights and priv-
ileges incidental to fraternal and benevolent corpora-
tions within the District of Columbia.

Sec. 2. That the said corporation shall have the
power to take and hold real and personal estate, not
exceeding in value one hundred thousand dollars,
which shall not be divided among the members of the
corporatioy, but shall descend to their successors for
the promotion of the fraternal and benevolent pur-
poses of said corporation.

Sec. 3. That all claims, accounts, debts, things in
action or other matters of business of whatever na-
ture now existing for or against the present Supreme
Lodge Knights of Pythias, mentioned in section 1 of
this act, shall survive and succeed to and against
the body corporate and politic hereby created; pro-
vided, that nothing contained herein shall be con-
strued to extend the operation of any law which pro-
vides for the extinguishing of claims or contract by
limitations of time.

Section 4. That said corporation shall have a
constitution and shall have power to amend the same
at pleasure; provided, that such constitution or
amendments thereof do not conflict with the laws of
the United States or of any State.

Section 5. That Congress may at any time amend,
in any business for gain; the purpose of said corpora-
tion being fraternal and benevolent.

Section 6. That Congress may at any time amend,
alter or repeal this act.
Approved June 29, 1894.”

21

1.

A corporation created by a federal statute is “inherently
entitled to invoke” the federal jurisdiction.

Texas Pacific R. Co. v. Hill, 237 U. S. 208, 59 L.
Ed. 918;

Texas Pacific R. Co. v. Marcus, 237 U. S. 215, 59
L. Ed. 924;

Supreme Lodge Knights of Pythias v. Mims, 241
U. S. 574, 60 L. Ed. 1179;

Supreme Lodge Knights of Pythias v. Smyth, 245
U. S. 594, 62 L. Ed. 492.

2.

The proper construction of a federal statute is primarily
for the federal courts; and the charter rights and powers of
petitioner under its federal charter are for the final determ-
ination of the federal courts.

Union Pacific R. Co. v. Myers, 115 U.S. 1, 29 L. Ed.
319;

Texas Pacific R. Co. v. Cody, 166 U. 8. 606, 41 L.
Ed. 1132;

Matter of Dunn, 212 U.S. 387, 53 L. Ed. 563.

3.

The charter of a corporation as construed by the courts
of its domicile or creation is the measure of its rights every-
where, and where a class suit is brought in the courts of the
jurisdiction of the corporation's domicile, the judgment de-
fining the rights of said corporation are obligatory every-

22

where under the ful! faith and credit clause of the federal
constitution.
Supreme Council Royal Arcanum v. Green, 237 U.
S. 531, 59 L. Ed. 1089;
Hartford Life Ins. Co. v. Ibs, 237 U. S. 662, 59 L.
Ed. 1165.

4,

Of necessity, the courts of the jurisdiction creating a
corporation must constitute the final authority as to the
validity of its rules, regulations, and by-laws.

Clark v. Mutual Reserve Fund Life Assn., 14 App.
Cas. (D. C.) 154, 43 L. R. A. 390;

Condow v. Mutual Reserve Fund Life Assn., 89 Md.
98, 44 L. R. A. 149, 73 Am. St. 169;

State ev. Shain, 245 Mo. 78, 149 S. W. 479.

Brenizer v. Supreme Council Royal Arcanum, 141
N. C. 409, 5 L. R. A. N. S. 235, 53 S. E. 835;

Royal Fraternal Union v. Lunday, 51 Tex. Civ.
App. 637, 113 S. W. 185;

Taylor v. Mutual Reserve Fund Life Assn., 97 Va.
60, 46 L. R. A. 621.

5.

The case of Holt, et al. v. Supreme Lodge Knights of
Pythias, was a class suit, having been brought and main-
tained by the complainants “in their own behalf and on be-
half of all others similarly situated,” in the United States
District Court for the District of Indiana; and the judgment
therein rendered, which was affirmed on appeal (See 149 C.

64 if

23

C. A. 197, 235 Fed. 885), is res judicata as to all matters
therein alleged, one of which was that the Supreme Statutes
of the order increasing rates was and is valid and obliga-
tory, said judgment expressly holding said rates valid.

Supreme Tribe Ben Hur v. Cauble, 255 U. S. 356;

Supreme Council Royal Arcanum v. Green, 237 U.
S. 531, 59 L. Ed. 1089;

Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 59 L.
Ed. 1165.

6.

Although said judgment was specially pleaded in peti-
tioner’s answer and was introduced in evidence, the District
Court of Otoe County failed and refused to give effect to
said judgment, and the Supreme Court of the State of Neb-
raska in aflirming said judgment failed and refused to give
full faith and credit to said judgment as guaranteed by the
Art. 4, Section 1, of the Federal Constitution and by Section
905, R. S. U.S.

Hartford Life Ins. Co. v. Ibs, 237 U. S. 662, 59 L.
Ed. 1165;

Supreme Council Royal Arcanum v. Green, 237 U.
S. 521, 59 L. Ed. 1089.

7.

Where the highest court of the jurisdiction creating the
corporation being the United States Supreme Court in this
case, has adjudicated the rights and powers possessed by a

24

corporation, it is the duty of other courts to follow such
adjudication and to give effect to such powers.
Supreme Council Royal Arcanum v. Green, 237 U.
S. 531, 59 L. Ed. 1089;
Hartford Life Ins. Co. v. Ibs, 237 U. S. 662, 59 L.
Ed. 1165.

8.

Judgments of the Federal courts are entitled to full faith
and credit in the state courts, the same as judgments of the
state courts, under Art. 4, Sec. 1, of the federal constitution,
and section 905, R. S. U.S.

Hancock Nat. Bank v. Farnum, 176 U.S. 645, 45 L.
Ed. 622;

Union, etc., Bank v. Memphis, 189 U. S. 75, 47 L.
Ed. 715;

Metcalf v. City of Watertown, 153 U.S. 671, 38 L.
Ed. 861.

9.

A judgment must be given the same force and binding
effect in another state which it has in the state rendering
such judgment.

Hampton v. McConnell, 3 Wheat. 234, 4 L. Ed. 378;
Mills v. Durgee, 7 Cranch 481, 3 L. Ed. 411;
Fauntleroy v. Lum, 210 U.S. 236, 52 L. Ed. 1042.

The plaintiff’s assured having been a party to the Holt
case, brought to declare void and illegal, all the supreme
statutes of the petitioner, increasing the rates of insurance,

25

cannot now, after such rates have been held valid and obliga-
tory, in such case, raise the question of the validity of such
rates, even though a different ground therefor be alleged,
which there is not.
Holt County v. National Life Ins. Co., 25 C. C. A.
469, 80 Fed. 686;
Dimack v. Revere Copper Co., 117 U. S. 559, 29 L.
Ed. 994;
Reynolds v. Mandel, 175 Ill. 615, 51 N. E. 649;
Bates v. Brodie, 245 U. S. 526, 62 L. Ed. 444;
Mitchell v. First Nat. Bank of. Chicago, 180 U. S.
471, 45 L. Ed. 627;
Union Pacific R. Co. v. Wyler, 158 U. S. 285, 39 L.
Ed. 983;
Boston, etc., R. Co. v. Hurd, 47 C. C. A. 615, 108
Fed. 116, 56 L. R. A. 193.

In view of the foregoing provisions of our federal consti-
tution, and statutes, and the uniform adjudications there-
under; and under our system of government and the applica-
tion of our federal and state laws, your petitioner has not
‘received its legal rights, and is entitled to a reversal of the
judgment of said Supreme Court of Nebraska.
Respectfully submitted,

OWN GC 4K Ue aa

Attorneys for Petitisner.

RY WAC Md gi RR NN a oo = PGE TD IRI APS NR

shRNA RE RARITIES Y= ag
: DEC 24 1923

WM, R, STANSBURY
No. 214. CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1923. |

SN

SUPREME LODGE KNIGHTS OF PYTHIAS,
Plaintiff in Error,
Vv.

GEORGE O. MEYER,
Defendant in Error.

IN ERROR TO THE SUPREME COURT OF THE STATE OF
NEBRASKA.

BRIEF OF PLAINTIFF IN ERROR.

T, P. LITTLEPAGE,

W. J. CONNELL,

GEorGE A. BANGS,

SoL H. ESAREY,

Warp H. WATSON,

Attorneys for Plaintiff in Error.

eT

E. A. HARDIN PRINT, INDIANAPOLIS.

INDEX.

PAGE
EE nica cent ehnmdnnahdgeime marddlink 2
ee ee 26-30
Bangs, Geo. A., Testimony of.......-..------- ‘ciate 24, 25
NN ini cus thing dca rend en ch tems omapt areas tans 10
GES eae ae pst rae eee, a a epee 14-20, 59
I Aa 0 a ss Botts bn aonb ppatatae a a a aia 9
I Se sirens cess ano seine dishinin in desescabaaues 71
I iad csc ii taah nds pied inn bipaneh artcthehspiiesiaiieinistie 61
SE SINE PRISER IIND (5 a on np as cerie mcceues xshenlion sind ecetaaomelacians 31
Powers, Walter O., Testimony of_........_-_- 22-23, 25-26
EEE ESSERE EN Ee SOR RT Ba 58
I Sak a areas ican cen stn nebebedptatancuriantinih 62
EE SE ana eae ee as en 1
Supreme Lodge, Act Incorporating_............__-- 11-12
IY IRINA tc, ass anintsnddepnesansielinindasasevictaababorel 20-21

TABLE OF CASES.

A
Alkine Grocery Co. v. Richesin, 91 Fed. 79, 83_.------
American Mutual Life Ins. Co. v. Mason, 159 Ind. 15,
16, 16 WN. BE. GBB... noo nnn oon sa ee 50
Alerding v. Allison, 170 Ind. 252, 258, 83 N. E. 1006,
ge ae 3 eee 42, 52
Andrews Bros. Co. v. Youngstown Coke Co., 86 Fed.
586, 606, 80 CCA 208... ....22200-2256--222- 8
B
Bacon v. Robertson, 18 How. 480 15 L. ed. 499_------ 41, 44
Ballard v. Franklin Life Ins. Co., 81 Ind, 239_-------- 52
Bank v. Wheeler, 28 Conn. 439, 73 Am. Dec, 684_----- 50
Barras v. Bidwell, 3 Woods 7, Fed. Cas. No. 1039_--. 50

Bates v. Bodie, 245 U. S. 520, 526, 62 L. ed. 444___42, 44, 68
Bauer v. Sampson Lodge Knights of Pythias, 102 Ind.

a ee manna 31, 38, 55
Beard v. Federy, 70 U.S. 478.....----------------- 33
Beck v. Devereux, 9 Neb. 109, 2 N. W. 365...------- 46
Bell County, etc., School v. Pineville Graded School,

19 Ky. Law Rep. 789, 42 S. W. 92_------------- 42, 67
Benes v. Supreme Lodge Knights and Ladies of Honor,

ie BS £8 es 8) 32

Bernheimer v. Converse, 206 U. S. 516, 51 Lied. 1163. 54
Board of Commissioners of Lake County v. Platt, 79

Fed. 567, 25 CCA 87_........---------------- 43, 68
Boston, etc., R. Co. v. Hurd, 108 Fed. 116, 47 CCA 615,
G6 LRA 198... nccencccceccccsseen---- 44
Bradley v. Dels Lbr. Co., 105 Wis. 245, 252, 81 N. W.
BOG ne ncnecccccccecccecnccccccccscncenss 33
ii

a

a Pa GIA NE AEE

iii

PAGE
venizer v. Supreme Council Royal Arcanum, 141 N.

C. 409, 6 LRANS 235, 53 S. E. 835------------ 36
urgess v. Gray, 57 U. S. 48----------------------- 33

Cc

‘annon v. Castleman, 162 Ind. 6-8, 69 N. E. Meanad 43, 52
hristmas v. Russell, 5 Wall. 290, 18 L. ed. 475------- 51
hoouteau v. U. S., 34 U. S. 187------------------ 34
incinnati, ete., R. Co. v. Wynne, 14 Ind. 325-------- 49
ark v. Mutual Reserve Fund Life Association, 14

App. Cas. (D. C.) 154, 43 LRA 390_------------ 35, 36
ockburn v. Thompson, 16 Ves. 321, 326, 328, 33 E.

ee eee 41,44
vlunbus v. Webster Mfg. Co., 84 Fed. 592, 28 CCA

225, 48 LRA 195_..---.----------------------- 44
ommonwealth v. Massachusetts Mutual Ins. Co., 112

Mane 996 onc ccceencnncncnncenacconsecas=] 39

onden v. Mutual Reserve Fund Life Association, 89
Md. 99, 44 LRA 149, 73 Am. St. 169, 42 Atl. 944__35, 36
mner v. Supreme Commandery Golden Cross, 117
Tenn. 549, 97 S. W. 306_-.-------------------- 39
onnoyer v. Schaeffer, 89 U.S. 254----------------- 33
otter v. Boston, ote., St. R. Co., 190 Mass. 302, 76 N.

= ae ee 44
onverse v. Ayer, 197 Mass. 443, 84 N. E. 98.------- 53
onverse v. Hamilton, 224 U. S. 243, 56 L. ed. 749_.--51, 54
rescent City, etc., Co. v. Butcher's Union, ete., 120 U.

S. 141, 157, 30 L. ed. 614, 617--.--------------- 49

rouse v. Holman, 19 Ind. 30, 36_....-------------- 52
htry v. Supreme Lodge Knights of Pythias, 48
ee nen 31
imock v. Revere Copper Co., 117 U. S. 559, 566, 29
eee 42, 48, 45

PAG

Dornes v. Supreme Lodge Knights of Pythias, 75 Miss.
466, 23 So. 191_----------------------------- Bi
Dowell v. Applegate, 152 U. S. 327, 345, 38 L. ed. 463 42,4
Duvall v. Synod of Kansas, 222 Fed. 669, 138 CCA 3
oie ada aesanneeeoenes 41,4
Dupasseur v. Rochereau, 21 Wall. 130, 135, 22 L.ed. &
G08. G00 . nnn ene eemenecassuennens

Eberhard v. Northwestern Mutual Life Ins. Co., 210
Wik OO nnn ccd cnentnennbusnecetucen
Ebert v. Mutual Reserve Fund Life Association, 81
Minn. 116, 83 N. W. 506, 834, 84 N. W. 457------
Elwood v. Beymer, 100 Ind. 504_-_-----------------
Embry v. Palmer, 107 U.S. 3, 27 L.ed. 346-----~-----
Equity Rule 38, U.S. Sup. Ct. 1912, 226 U.S. 659, 57 "3
De Oe TOD cnceuniinn ---------------------- 41,4

Fauntleroy v. Lum, 210 U.S. 230, 52 L. ed. 1080...... 50,71
Fletcher v. Ferrel, 9 Dana (Ky.) 377, 35 Am. Dee. 148 j
Fidler v. Gilchrist, 60 Ind. App. 368, 109 N. E. 796_--
Finley v. Cathcart, 149 Ind. 470, 477, 48 N. E. 586, 49

Oe gd canddunsdedacionsananamanke
First National Bank v. City of Covington, 129 Fed.

TOR GON qo occe vide encwascnnnnenensnnensans
Fischli v. Fischli, 1 «wf. 360, 12 Am. Dec. 251_---- 42,
1 Foster, Federal Praw ice (6th Ed.), § 114--------- 41,!
Franke v. Franke, 15 Ind. App. 529, 549__-----~-----
French v. Fyan, 93 U. S. 169, 23 L. ed. 812_-------
Fullenwider v. Supreme Council Royal League, 180

Ill. 621, 54 N. E. 485, 72 Am. St. 239_----------- 38,

F aks —— - . P snini ee ee ipl bn a it Rt 2 Ril th CAL AR Neale
MORRIS io ts tires ee rai nterht we W HL RA pane Soe coh
ieee eaaogal

v

G

PAGE
Gaines v. Supreme Council Royal Arcanum, 140 Fec.
UE. cdc hank eae an kamagra gn 36
Gilmore v. Knights of Columbus, 77 Conn. 58, 58 Atl.
223, 107 Am. St. 17, 1 Am. & Eng. Ann. Cas.
sk BURR sisi chcmc dees ts we svcd oo ca os ed op te le ian ee es eh wn haem ne a 39
~ Glencoe Granite Co. v. City Trust, etc., Co., 118 Fed.
| 383, 55 CCA 212 (certiorari denied, 187 U. S.
z RE gy A RE ee erence er Pore ae 48
= Goss v. Carter, 156 Fed. 746, 84 CCA 402__________-_ 54
»Grand Island, etc., R. Co. v. Baker, 6 Wyo. 394, 71 Am.
Rg Re OO eee ae 46
“Gregory v. Molesworth, 3 Atkins 626, 26 E.R.1160__ 43
Griffin v. Wallace, 66 Ind. 410, 447................. 43
)Grosvenor v. United Society of Believers, 118 Mass.

TE Or aaah whsaind Bohan caudconnceeneenan 31
H

FHadacheck v. Chicago, ete., R. Co., 74 Neb. 385, 104
ee AE aE i a Ek arn Se 49

ampton v. McConnel, 3 Wheat. 234, 4 L. ed. 378, note
OR | EE At ae Be See ae 49, 71

ancock National Bank v. Farnum, 176 U. 8. 640, 45
IAN cea a a 48, 49

arnon v. Auditor, 123 Ill. 132, 5 Am. St. 506, 13 N.
I I a 45
arn 0, Horets, 86 Bark. GB... ...ocncacccwueccessnes 42

Harshman v. Knox County, 122 U. S. 306,, 317, 30 L.
att Ne eceuee 42, 45

artford Life Ins. Co. v. Barber, 245 U. S. 146, 62 L.
ESE eer ee eG nee 38

artford Life Ins. Co. v. Ibs, 237 U. S. 662, 59 L. ed.
aren, tae 2OTGA. THB... cnc cnns 37, 38, 41, 45, 65, 66

semen sapien taht sin keene nai ianentainmen ieemeianimaeaenaiamn ee . ‘ pauses Sa

vi

13 Harvard Law Review 67 (Historical Survey of

Prof. Dicey) -------------------------------
Haydel v. Dufresne, 58 U. S. 23--------------------
Henderson v. Henderson, 3 Hare 100, 67 E. R. ) a
Hilgerson v. Hicks, 201 Ill. 374, 66 N. E. BP ntiietas
Hoefgen v. Harness, 148 Ind. 224, 229, 47 N. E. 470--
Holt County v. National Life Ins. Co., 80 Fed. 686, 25 ©

od oni ag akon 43,6
Holt v. Supreme Lodge Knights of Pythias, 235 Fed. ,

885. 149 CCA 197, 248 U. S. 588, 63 L. ed. 434-40,
Howard v. Mutual Reserve Fund Life Association, 125 |

N.C. 49, 45 LRA 853, 34 S. E. 199__----------- 35,0
Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, 49
SEE SS Se Sabie eo ee aR
I

Indiana, ete., R. Co. v. Allen, 113 Ind. 581, 587-------
Irvine v. Baker, 225 Fed. 834_~_------------- ere cael

J
Johnson v. Libby, 111 Me. 204, 88 Atl. 647, Ann. Cases
OE gna nmindinainemebee tin minal ;
Johnson v. Payne, 11 Neb. 269, 9 N. W. 81----------- :
Jordan v. Van Epps, 85 N. Y. 427, 436..------------ !
K

Kenney v. Supreme Lodge of the World, Loyal Order
of Moose, 252 U.S. 411, 64 L. ed. 638, 10 ALR 716
Kent v. Quicksilver Mining Company, 76 N. Y. 169--
King v. Cochrane, 76 Vt. 141, 56 Atl. 667, 104 Am. St.
922

rere ARAL SNe esavazionds Seared Sekt

vii

Kloke v. Gardels, 52 Neb. 117, 71 N. W. 955-_--. .---- 43

Knotts v. Clark Construction Co., 131 N. E. (Ind.) 921 52

Kocher v. Supreme Council Catholic Benevolent Le-
gion, 65 N. J. L. 649, 48 Atl. 544, 86 Am. St. 687,

Oe NE Conc ckaenakobencaeecammmuanees 82
L
Laker v. Royal Fraternal Union, 95 Mo. App. 353, 74
i | aap esse eee ee eee 82
ii ee BEG 8). 0h, OO. can cna eon emcee 34
Looney v. Eastern Texas R. Co., 247 U.S. 214, 62 L.
i a i ies paces lig etre meant nie an esa Mati 41, 45
Lovell v. St. Louis Mut. Life Ins. Co., 111 U.S. 264, 28
ae ee gd hg on wy wince ein ca ae 41
M
Mandeville v. Riggs, 2 Pet. 482...................- 41, 44
Marshall v. Stewart, 80 Ind. 189_...-._----------- 52
Martin v. Abbott, 1 Neb. (Unof.) 59,95 N. W. 356__-_ 43

Mashlonpah v. Mayhew, 138 Wis. 561, 119 N. W. 826 = 46
Maynard v. Waidlich, 156 Ind. 562, 573, 60 N. E. 348_ 52
Mayor of Davenport v. United States, ex rel., 76 U.S.

et a se evi abgieicamnchinewian 46
Mazzariello v. Doherty, 204 Fed. 245, 122 CCA 513___44, 69
Melntire v. Williamson, 63 Kan. 279, 65 Pac. 244____- 43
Metcalf v. City of Watertown, 153 U. S. 671, 38 L. ed.

eR ie eee a a eka ana aan ok ddan hominem 48
Miller v. National Council Knights and Ladies of Se-

curtiy, GO Kans. 234, 76 Pac. $80............... 39
Mills v. Durgee, 7 Cranch 481, 3 L. ed. 411, note top

a a a a td case enlace 50

Mitchell v. First National Bank of Chicago, 180 U.S.
RE I, UR sa sickens wie potersow and 42, 44, 69

RIES

viii

Modern Woodmen of America v. Tevis, 117 Fed. 369_-
Morris v. Burgess, 116 N. C. 42, 21S. E. 26_--------

Mutual Assurance Society v. Korn, 7 Cranch 396, 3 L.

a ne i sseceenae ac mnon pane aa

National Circle, Daughters of Isabella v. National Or-
der Daughters of Isabella, 270 Fed. 725_--------
Nauyalis v. Philadelphia, etc., Co., 270 Fed. 93, — CCA
Neuman v. Supreme Lodge Knights of Pythias, 110
Miss. 371, 70 So. 241, LRA 1916C, 1051--------
New Dunderberg Mining Co. v. Old, 79 Fed. 598, 25
ca ateaeeanemeameaal
Noble v. Union River Logging R. Co., 147 U. S. 165
172
Northern Assurance Company v. Grand View Build-
ing Assn., 203 U. S. 106, 51 L. ed. 109_-------
Norton v. Catholic Order of Foresters, 138 Ia. 464, 114
N. W. 893, 24 LRANS 1080..................-
Note, 31 LRANS 416-417_......------------------

Old Dominion Copper, ete., Co. v. Bigelow, 203 Mass.
159, 40 LRANS 314, 89 N. E. 193--------------

P

People v. Brotherhood of Painters, Decorators and Pa-
perhangers of America, 218 N. Y. 115, 112 N. E.
908.) cis cence enue en es mien emaianan

We. B1E ncnncitincenctccinccancncsensedesecs=

PAGE

ry feiss: oa P . Dre Rihtae Cue . “6 cate So Wn Rid el wa Sng ip ie te SNR iBone incite Se ae
PS sat oma,

ix
PAGE
People v. St. George's Society, 28 Mich. 261--~------ 55
Pfister v. Gerwig, 122 Ind. 567-_-------------------- 32
Pierce v. Equitable Life Assurance Society, 145 Mass.
56, 1 Am. &. 498,12 N. EB. 800... 00.00.-- 35
Pittsburgh, ete., R. Co. v. Long Island Loan, ete., Co.,
iy fie oe i A SS eee een 49
R
Ralls County v. United States, ex rel., 105 U. S. 733
Ae Mss & aininte nate aimed mesma aims 46
Reynolds v. Mandel, 175 Il. 615, 51 N. E. 649_-__---- 43
Reynolds v. Supreme Council Royal Arcanum, 192
Mass. 150, 78 N. E. 129, 7 LRANS 1154__------ 39
- Richardson v. Jones, 58 Ind. 240, 248___------------ 52
_ Richardson v. Opelt, 60 Neb. 180, 82 N. W. 377_-_-_--- 46
— Royal Fraternal Union v. Lunday, 51 Tex. Civ. App.
a ER A ARR Seer aey em eapee name re 35, 36
Ruckman v. Union Railway Co., 45 Or. 578, 78 Pac.
Pr ie are 42
Ryan v. Rhodes, 167 Ind. 121, 126, 76 N. E. 249, 78
Be ls Od bitchin ih nnchcd lamin pimp eeiaaanidagensea 52
3 Ss
_ Saunders v. Robinson, 144 Mass. 306, 10 N. E.815--- 37
_ Selig v. Hamilton, 234 U. S. 652, 58 L. ed. 1518___--- 54
| Sharon v. Hill, 26 Fed. 337, 391_.-.---------------- 50
| Shepperd v. Bankers Union of the World, 77 Neb. 85,
I SR i in ob mista chabeins 40

; Shipman v. Protected Home Circle, 174 N. Y. 398, 409 39
Singer v. Hutchinson, 183 Ill. 606, 56 N. E. 388, 75
pgs a AE ot ipa ae eee EE Re yc a 43

x
PAGE
Slater v. Skeirving, 51 Neb. 108, 70 N. W. 492, 66 Am.
St. 444 ......-...........--2--2--5--2------ 42
Smith v. Mutual Life Ins. Co., 14 Allen 336_--------- 33 |

Smith v. Swormstedt, 16 How. 288, 14 L. ed. 942__--- 41, 44
Smyth v. Supreme Lodge Knights of Pythias, 198 Fed.

hee es I Ee eG aap th th ie an gs 62 |
Smyth v. Supreme Lodge Knights of Pythias, 220 Fed.
Be ea nee 62
Sovereign Camp Woodmen of the World v. Hall, 104
Ark. 538, 148 S. W. 526, 41 LRANS 517-_------- 31
Spargo v. Converse, 191 Fed. 823, 112 CCA 337__---- 5
Sperry, ete., Co. v. Blue, 202 Fed. 82, 120 CCA 1_----44, 69 |
State v. Buffalo County, 6 Neb. 461_--------------- 42 |
State v. Denton, 229 Mo. 187, 138 Am. St. 417, 129 |
“tO Ee UA ee ES ae 36 |
State v. Shain, 245 Mo. 78, 149 S. W. 479___--------- 36 |
Straus v. American Publishers Assn., 201 Fed. 306, |
OM a i cin ete 44

St. Louis, etc., Co. v. Kemp, 104 U. S. 636, 26 L. ed. 875 |
Supreme Council Royal Arcanum v. Green, 237 U.S. |
531, LRA 1916A 771, 59 L. ed. 1089____------ |

36, 37, 38, 41, 45, 65 |

Supreme Lodge Knights of Pythias v. Knight, 117 Ind. |
ae Pet NR eG le ee BY ROOTS 31, 32, 38, 39

|

Supreme Lodge Knights of Pythias v. Kutscher, 179
eS 8 eR RR ee ee ee 32

Supreme Lodge Knights of Pythias v. LaMalta, 95
em bh tS. reer |

Supreme Lodge Knights of Pythias v. Mims, 167 S. W.
Pe i eS Bio ren ctticniindcincnn 62

Supreme Lodge Knights of Pythias v. Mims, 241 U. S.
. Jy 2... eee ee 39, 62, 76, 83

PAGE

" Supreme Lodge Knights of Pythias v. Stein, 75 Miss.
= 107, 21 So. 559, 37 LRA 775------------------- 31
Supreme Tribe of Ben Hur v. Cauble, 255 U. S. 356, 65

gh yD GRE essa oe eee OOO ea ee 41, 45
Suydam v. Barber, 18 N. Y. 468, 471, 75 Am. Dec. 256 50

=
Talbert v. Modern Woodmen of America, 83 Wash.
SE Biba cttdinnaninn asinine 35
Taylor v. Mutual Reserve Fund Life Association, 97
Va. 60, 45 LRA 621, 33 S. E. 385_----------- 35, 36

Thibert v. Supreme Lodge Knights of Honor, 78 Minn.
a 448, 81 N. W. 220, 79 Am. St. 412,47 LRA 136__ = 32
- Thomas v. Musical Mutual Protective Union, 121 N.
"y +A 8 Fe SEF Sen 55
Tice v. Supreme Lodge Knights of Pythias, 204 Mo.

Re Be i Mk Ceci wrrnininicd ne ennenannmnnen 37, 82
U

Union, etc., Bank v. Memphis, 189 U. S. 71, 47 L. ed.
EIN ee Nee eS ORR nae Pe ee 48

Union Pacific R. Co. v. Wyler, 158 U. S. 285, 39 L. ed
BE ice Alesis Saskia tetucieoa enlace ageneenanlbapenmenienndadee 44

United States v. Arredondo, 31 U. S. 691, 729, 8 L
Be BN no hens cennencsneneeennetimecaemet 33, 74

S United States, ex rel. v. City of New Orleans, 98 U.
We OO, | hicnccinceecensrntneanencnsneareses 46

5 United States, ex rel. v. County Court of Knox County,
ee as Oe Os BO Ba C6. BORE. .. nck dneiiicnonse 46

United States v. Haytien Republic, 154 U. S. 118, 129,
OS ee ce aalbaimnnion 42, 45

xii

28 U.S. Statutes at Large, pp. 96, 97--------------
U.S. Comp. Statutes 1916, § 905, R. S. U.S., § 1519_-
$905 R. S. U.S., § 1519, U. S. Comp. Statutes 1916._ 4

WwW

Watson v. National Life, ete., Co., 162 Fed. 7, 12, 88

OO no cen ceennonennl 41, 4
Walker v. Walker, 150 Ind. 317-325, 50 N. E. 68_---- i
Werlein v. City of New Orleans, 177 U. 8. 390, 44 L.

PO |, Earp aE eT rt
Westerman v. Supreme Lodge Knights of Pythias, 196

Mo. 670, 94 S. W. 470, 5 LRANS 1114_--------- 37,7
Wilcox v. Cassick, 2 Mich. 168_-------------------- b
Wilson v. Buell, 117 Ind. 315, 317, 20 N. E. 231------ 5
Wineland v. Knights of Maccabees, 148 Mich. 608_--- 3

Woolery v. Grayson, 110 Ind. 149, 10 N. ge Sa.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1923.

SUPREME LODGE KNIGHTS OF PYTHIAS,
Plaintiff in Error,

v. Lato. 214.
GEORGE O. MEYER,

Defendant in Error.

;
:

IN ERROR TO THE SUPREME COURT OF THE STATE OF
NEBRASKA.

BRIEF OF PLAINTIFF IN ERROR.

STATEMENT OF THE CASE.

This was an action by the beneficiary upon a benefit cer-
- tificate issued by the plaintiff in error. As alleged in the
complaint, said certificate provided, among other things,
for the payment of insurance to the defendant in error upon
the death of the member. Said certificate was issued sub-
ject to the charter, and the laws, rules and regulations of
the society governing the Insurance Department, “now in

PN A og ad mY

2

force, and as the same may be hereafter changed, altere)
added to, amended or repealed.” (Tr., p. 3, Par. 2.)
Another provision of said certificate required said
ber to pay the assessments, or dues, monthly, during
life of said certificate. (Tr., p. 4, Par. 1.)
And “failure to make any such payment on or before
20th day of the month for which the same is due shall, ipe
facto, from and after such date, forfeit this certificate!
(Tr., p. 4, Par. 1.) ui
The application of said member for insurance, was mar
a part of the contract and is set out in plaintiff's complaix :
and one of the provisions thereof, is “I further forsee
and agree that if my said application for membership i
accepted, constituting parts 1 and 2 thereof, that me
application, the benefit certificate or certificates that may®
issued thereon, the charter, the constitution and statu
of said Supreme Lodge now in force with any and i
amendments thereto hereafter enacted by the said Supren_
Lodge, and all the rules and regulations of the Board ©
Control of said Insurance Department as the same ne
exists or may from time to time be adopted shall constite
the contract of insurance between the undersigned the :
Supreme Lodge, and I further agree that as a member
said insurance department, if accepted I will be go
and conform to, and my obligations, and rights and
of my beneficiaries shall be governed and controlled by !
said contracts.” (Tr., p. 7, Par. 5.)
To this complaint the plaintiff in error filed its a
answer which among other things, alleged that the plai
in error was created by an Act of Congress and that!
powers to transact business, execute contracts and

* ;

change or raise the rates of insurance was derived from

such Act of Congress, and that the claim of said plaintiff

required the court to give a construction to said act which

construction constituted a federal question upon which the

courts of the United States constituted the final authority.

(Tr., p. 17, Par. 1.)

Said amended answer further alleged that said member

“failed, neglected and refused to pay his assessments and

dues required to be paid under said certificate, No. 4651,

from January, 1911, on to the time of his death, and that by
reason of such failure, neglect and refusal the said cer-
tificate of membership and all the rights of said Louis J.
Meyer became and were forfeited and the said plaintiff, by
reason of such failure, neglect and refusal has no right of
recovery for any sum whatever in this action.” (Tr., p. 18,
Par. 4.)

The amended answer further alleged that pursuant to
said Act of Congress creating the plaintiff in error, it prom-
ulgated and made an increase of rates of insurance, and the
amount required to be paid by said member and all others,
was increased; that said increased rates became effective
January 1, 1911; that the said member had full knowledge
of said increase; that said increase was just, reasonable and
necessary and that the said plaintiff in error had the author-
ity and power to enact and pass said increase in rates and
that said laws so increasing the rates were binding upon
said member and that notwithstanding the duty of said
member to pay said increased rates, he purposely failed,
neglected and refused to pay said dues from said date to
the time of his death, and that a forfeiture of all his rights

4

by reason thereof occurred and existed and has ever since
existed.” (Tr., p. 18, Par. 5.)

The amended answer further alleged that one, Holt, and
others, before the bringing of this action had brought and
maintained a class suit in the District Court of the United
States for the District of Indiana, against the plaintiff in
error in order to determine the validity of the raise in rates
which said members refused to pay and that the said United
States Court finally decided and decreed that the plaintiff
in error had the right, power and authority so to change
and increase its said rates, and that its said action in that
behalf was reasonable, proper and necessary; that said
defendant had a representative form of government at the
time it increased said rate of insurance; that the said Holt
was a member of said organization in the same class with
the said Louis J. Meyer and that said District Court had full
power and jurisdiction of the matters involved in said suit.
And that said decree “is final, conclusive and res judicata
of the questions, matters and things therein decided and
is decisive of the rights of said Louis J. Meyer and the
rights of the plaintiff herein to recover in this action, and
holding, adjudicating, determining and finally deciding that
no right of recovery, under the facts of this case existed,
and by reason of said decision and the determination of said
questions by said court, the said plaintiff is now barred and
estopped from again litigating said questions or denyng the
conclusiveness of said decision in said case.” (Tr., p. 19,
Par. 6.)

The amended answer further alleges that the Supreme
Court of the United States in an appeal taken by the plain-
tiff in error in a case of Mims against the plaintiff in error

Pied atte Cpe hai ee Me
eae? —_—

5

affirmed by the Court of Civil Appeals of the state of Texas,

had construed the statute creating the plaintiff in error

herein and had decided in said case that the plaintiff in

error had the right and the power to increase its rates under

and by virtue of the same Supreme Statute which is in-

volved in the present case, and that said decision so constru-

ing said statute is binding and obligatory upon the courts

of the several states by reason of the fact that the act creat-

ing the plaintiff in error is a federal statute. (Tr., p. 20,

Par. 7.) |

The amended answer further alleges that said Louis J.
|
|
|
|

Meyer in his application and in his certificate also agreed
to abide by all the rules and regulations then enacted and
all to be subsequently enacted governing said insurance,
and that the subsequent statute raising the rates was proper
and just to all members and that his beneficiary is now
estopped from denying or controverting the right of the
plaintiff in error to raise the rates of insurance in con-
troversy herein. (Tr., p. 21, Par. 8.)

The amended answer further alleged that the plaintiff
in error was first organized under the laws of the District
of Columbia in 1870, for a period of twenty years; that its
charter expired in 1890; that from 1890 to 1894 it continued
transacting its customary business as a de facto corpora- |
tion ; that in 1894 a federal statute was enacted creating the |
plaintiff in error and that it has since continued to transact
all of its business under and by virtue of said Act of
Congress.

|

It further alleges that the Insurance Department was
created in 1877 that it continued to write insurance from
that time on; that the plaintiff’s decedent was a member of

the Insurance Department and that Joseph Holt and all
others who were named as plaintiffs in the case of Holt et al,
against Supreme Lodge as above set forth were members
of said class in said Insurance Department; that in 1910
the plaintiff in error “ascertained that the rates theretofore
fixed were inadequate and would not produce funds suff.
cient to mature the certificates outstanding; that there was
an increasing deficit due from each holder of a certificate
because the dues were less than cost of insurance; that said
Supreme Lodge was through necessity required to take
action for the relief of said Department, that said Supreme
Lodge did enact and promulgate a statute fixing a schedule
of rates being the same rates now in force; that the enact-
ment of said statute and the promulgation of said rates
caused more or less dissatisfaction among the members of
said Department of defendant and that, because thereof,
Joseph Holt, Victor Mauberret, Ross Carlin and 17 others,
all citizens and residents of the state of Louisiana “on behalf
of themselves and all others similarly situated,” on Janv-
ary 25, 1911, filed their bill in equity in the United States
District Court for the District of Indiana, alleging that said
statute was invalid, wrongful and not binding upon them or
anyone holding a certificate similar to theirs, and prayed
that the said court grant a writ of injunction restraining
the defendant from putting into effect said statute increas-
ing said rates and requiring the defendant to accept the
old and prior rates; that the defendant duly answered said
bill, denying said statutes was invalid but asserted that it
was valid and necessary to the further conduct of said de
fendant.” (Tr., p. 21, Par. 9.) .

Kf

_ That said cause was submitted for trial and the court
found that the defendant therein was a fraternal bene-
ficiary society conducted without profit, possessing a lodge
8) stem and ritualistic form of work and had a representa-
tive form of government; that the increase of rates was
: uly and legally made. That the said Joseph Holt and all
thers were in the same class with the plaintiff’s decedent
‘and held certificates similar in all respects to the one held
f by plaintiff’s decedent and sued upon in this case. (Tr., p.
2, Par. 9.)

It was further alleged that an appeal was taken from
the decree and judgment of the United States District Court
o the Circuit Court of Appeals for the Seventh Circuit and
that said judgment was duly affirmed and that the plaintiffs
therein duly filed their appeal from the judgment of affirm-
: nce of the Circuit Court of Appeals, and that said appeal
Was dismissed by the Supreme Court of the United States
4 nd that said judgment and decree of the District Court of
t e United States has been in full force and effect since
‘its rendition.

i The amended answer further alleges that the said judg-
‘ment and decree of the district court of the United States
a nd of the Circuit Court of Appeals in said cause are en-
titled to full faith and credit in the courts of the State of
Nebraska and that said judgment and decree ought to
“estop the plaintiff from alleging or asserting that the statute
of 1910 raising the rates is invalid or unenforceable against
he plaintiff, and that said plaintiff is estopped by reason
hereof from alleging or asserting that the defendant does
hot have and maintain a representative form of government

8

and that the said judgments should be and are binding and
conclusive on all courts, state as well as federal and that
failure so to consider and determine constitutes a failure
to give full faith and credit to the records and judgments
of said court, as required by Section 905 Revised Stat-
utes of the United States, and also is in violation of
Article 4, Section 1, of the Federal constitution requiring
full faith and credit to be given to the public records ani
judicial proceedings of every other state. |

The amended answer further alleged that in 1892, 1961,
1909 and 1910, extra assessments were made against the
plaintiff’s decedent and in 1894 and 1901 increases in rate
were established and promulgated by the defendant and sai
increases were duly paid by plaintiff’s decedent; that the
manner of selecting the Supreme Lodge of the defendant
has been prior to and was subsequently to said times the
same as in the year 1910 when the increase in question was
enacted; that by reason of said facts the plaintiff ought to
be estopped from asserting that the defendant in 1910 did
not have a representative form of government.

The plaintiff replied to said amended answer by alleg-
ing that no act of Congress was involved in this action;
that the certificate of insurance was not conditional ant
was not subject to a change by said defendant and further
denied that the said Louis Meyer failed or refused to pa)
his assessments after January 1, 1911, or at any other time
and that the defendant was not vested with power or auth
ority to make any increase in the rates of insurance whith
would affect the certificate sued upon and further deniei
that any change of the rate of insurance was made affect
ing the certificate of plaintiff’s decedent. (Tr., p. 25.)

9

Said reply further alleged that on a prior appeal of this
cause the Supreme Court of Nebraska had held that the
plaintiff in error did not have a representative form of
government, and that it was without any power to change
its rates by reason of said fact, and that the pretended
rates sought to be made effective January 1, 1911, were
void, and therefore, said certificate did not become for-
feited but remained in force and effect.

JUDGMENT.

: The finding was for the plaintiff. (Tr., pp. 26-27.) upon expectancy of death. (Tr., 311.) The rates were
- fixed in order to meet outstanding policies and liabilities.
~ Rates are fixed upon a mortality table. This table assumes
from experience that at age 65 a certain number of men
(- will die; at 66, a larger number will die; at 67 a still larger
number will die. The rates were fixed so that it would
~ mature all certificates except those withdrawn. There was
no way to tell how many would withdraw. (Tr., 312.)

W. O. Powers being recalled, testified:

The mortuary fund of the Fourth Class always remained
to the credit of the members of that class. It was never
_ changed to the Fifth Class. (Tr., 313.) There was never

26

any change made in rates for the Fifth Class after its crea.
tion. Members of the Fourth Class in transferring to the
Fifth Class were not required to pass medical examination,
They were given the option of eight or ten different forms
of certificate. (Tr., 314.) The lapsation of a policy would
not constitute a benefit to the society. The reason is that :
those who lapse are usually profitable and desirable risks— —
men in good health. The payments made by Mr. Meyer had
already been used in payment of death losses. There was
no reserve in the Fourth Class. (Tr., 315.) If all Fourth
Class certificates had lapsed it would have ended that class,
and the society would have the money. There has been}
practically no lapsation in Class Four since 1911.

ASSIGNMENTS OF ERRORS.

To the decision of the Supreme Court of the State of
Nebraska the plaintiff in error has assigned errors 4

follows:

“The Supreme Lodge Knights of Pythias in cor-
nection with its petition for a writ of error hereit
makes the following assignment of errors which
said Supreme Lodge Knights of Pythias avers o-
curred in the final order and judgment herein, dated {
the 5th day of October, 1922, and in overruling peti-
tion for a rehearing November 20, 1922.

First. The Supreme Court of the State of Ne
braska erred in holding that the action of Supreme
Lodge Knights of Pythias, as created by the act of
the United States Congress, on June 29, 1894, 2
U. S. Statutes at Large, pp. 96, 97, in increasing the
rates on its members in the insurance department, it
1910, effective January 1, 1911, was and is invalid
and void, and not binding on the members thereof
who were and are citizens of the State of Nebraska

ee EE Ae oe pl ARNE we fae Sead met EES Sl 2 OR Se Te
SPF A AMES Ei OER OE OTIRION EW ae DIOS, To ATOM ETHER ie RS EMRE eM We

27

Second. The Supreme Court of the State of Ne-
braska erred in holding that no legislation of said
Supreme Lodge Knights of Pythias, affecting those
of its members holding insurance certificates, is
valid and effective unless the membership of said
Supreme Lodge shall be composed entirely of mem-
bers holding insurance certificates, and shall also be
biennially elective by the members holding such in-
surance certificates, whereas, the federal statute cre-
ating said corporation (28 U. S. Statutes at Large,
pp. 96, 97) makes no such restriction, and specially
creates the ‘officers and members of the Supreme
Lodge Knights of Pythias, and their successors,’ as
a body corporate, giving certain enumerated powers
thereto, one of which is to issue insurance certifi-
cates to those of its membership desiring same.

Third. The Supreme Court of the State of Ne-
braska erred in holding that the power to strike
down the statutes enacted by said Supreme Lodge
Knights of Pythias, inhered in the States, after the
validity of said questioned statutes had been finally
decided and held valid in two decisions of the Hon-
orable, the Supreme Court of the United States.

Fourth. The Supreme Court of the State of Ne-
braska erred in refusing to give effect to the judg-
ment and decree of the Honorable, the United States
District Court for the District of Indiana, in the
case of Joseph Holt, et al. v. Supreme Lodge Knights
of Pythias, wherein several members of said order,
who held insurance certificates therein, and who
were similarly situate with the plaintiff herein in
all respects and who brought said suit in ther own
behalf and in behalf of all others similarly situated,
for the express object and purpose of having said
statutes increasing the rates, which are the same
statutes involved in this action set aside and held
invalid and void, and to enjoin said Supreme Lodge
Knights of Pythias from enforcing same, and which
judgment and decree was appealed from, and
affirmed by the Honorable Circuit Court of Appeals
for the Seventh Circuit and by said Circuit Court of

fpr prea oa

EIT LIE, OLIN ARAL LAIN EIA NA, 0 Ne Sac ot Tigi wile ey hats ined) bata ate

Appeals for the Seventh Circuit affirmed, which
judgments and decrees are now in full force and
effect.

Fifth. The Supreme Court of the State of Ne-
braska erred in holding that the plaintiff in this
action was not bound by the judgment and decree
of the District Court of the United States for the
District of Indiana in the case of Joseph Holt, et al.
v. Supreme Lodge Knights of Pythias, which suit
was brought and maintained by said Joseph Holt
and others, on behalf of themselves and of all others
similarly situate, and wherein the validity of the
supreme statutes of said Supreme Lodge Knights of
Pythias, was affirmed and set at rest, the plaintiff
herein, being similarly situate with the plaintiffs in
said Holt case, * * * and the same being a
right guaranteed to the plaintiff in error under and
by virtue of Article 4, Section 1, of the Federal
Constitution, guaranteeing full faith and credit by
one state to the judicial proceedings of every other
state.

Sixth. The Supreme Court of the State of Ne-
braska erred in holding that the plaintiff in this
action was not bound by the judgment and decree
of the District Court of the United States for the
District of Indiara in the case of Joseph Holt et al.
v. Supreme Lodge Knights of Pythias, which suit
was brought and maintained by said Joseph Holt
and others, on behalf of themselves and of all others
similarly situate, and wherein the validity of the
supreme statutes of said Supreme Lodge Knights of
Pythias, was affirmed and set at rest, the plaintiff
herein, being similarly situate with the plaintiffs in
said Holt case, and the same being a right guaran-
teed to the plaintiff in error by virtue of Section 905
R. S. U.S., Section 1519, U. S. Comp. Stat. 1916, pro-
viding that the records and judicial proceedings of
any state or territory, or of any such country, shall
have such faith and credit given to them in every
court within the United States as they may have by

%,

pes:
fy cee

29

law or usage in the courts of the State from which
they are taken.

Seventh. The Supreme Court of the State of
Nebraska erred in holding that the plaintiff, being
the defendant in error herein, is not estopped by
virtue of his membership in said Supreme Lodge
Knights of Pythias so created by federal statute, 28
U. S. Statutes at Large, pp. 96, 97, from again rais-
ing the question of the validity of the rates enacted
by said Supreme Lodge Knights of Pythias in 1910,
for the reason that Joseph Holt and others in their
own behalf, and in behalf of all others similarly
situate, including: the defendant in errors assured,
brought and maintained a suit for the purpose of
declaring void the same statutes involved in this
action, and wherein a judgment and a decree of the
United States District Court for the District of In-
diana was rendered that said statutes were valid
and obligatory.

Eighth. The Supreme Court of the State of Ne-
braska erred in holding that the Supreme Lodge
Knights of Pythias did not have and maintain, at
the time of the enactment of the statutes in question,
increasing the rates, a representative form of gov-
ernment, whereas it had and maintained at said time
and ever, the same form of government which it
had at its creation by federal statute, 28 U.S. Stat-
ute at Large, pp. 96, 97.

Ninth. The Supreme Court of the State of Ne-
braska erred in holding that the Supreme Lodge
Knights of Pythias did not have and maintain at the
time of the enactment of the statutes in question,
increasing the rates, a representative form of gov-
ernment, whereas it was alleged in the answer and
shown by the evidence that said question was ex-
pressly decided adversely by the judgment and de-
cree o' the United States District Court for the Dis-
trict of Indiana, in the case of Joseph Holt and oth-
ers against Supreme Lodge Knights of Pythias,
wherein Joseph Holt and others sued in their own
behalf and in behalf of all others similarly situate,

toy ers et

including defendant in error’s assured, to set aside
said statutes increasing the rates, as invalid and
void.

The Supreme Court of the State of Nebraska
which is the highest court in said State in which a
decision in this action could be had where was
drawn in question the rights of the plaintiff in error
under the federal act of 1894, 28 U. S. Statutes at
Large, pp. 96, 97, creating the plaintiff in error,
and the rights of plaintiff in error under Section
905 R. S. U. S., and under Article 4, section 1, of
the federal constitution, and the question of estoppel
of the defendant in error under the federal statute
of 1894, 28 U. S. Statutes at Large, pp. 96, 97, and
the question of the validity of the legislation of
said plaintiff in error under the federal statute cre-
ating it, as affecting the members in the State of
Nebraska.

The Supreme Lodge Knights of Pythias prays
that a writ of error from the Supreme Court of the
United States may issue to the Supreme Court of
the State of Nebraska; and further prays that the
Supreme Court of the United States will reverse the
said final order and judgment of the Supreme Court
of the State of Nebraska, and that the Supreme
Lodge Knights of Pythias may be restored to all
things and rights which it has lost by reason of the
said final order and judgment; and that it may have
such other and further relief as may be proper and
just.”

——

31

POINTS AND AUTHORITIES.

FIRST ASSIGNMENT OF ERRORS.

The first error complained of is as follows: (Tr., p. 332.)

“The Supreme Court of the State of Nebraska
erred in holding that the action of the Supreme
Lodge Knights of Pythias, as created by the act of
the United States Congress on June 29, 1894, (28
U.S. Statutes At Large, pp. 96, 97) in increasing the
rates on its members in the Insurance Department,
in 1910, effective January 1, 1911, was and is invalid
and void, and not binding upon the members thereof
who were and are citizens of the state of Nebraska.”

Point One.

1. The By-Laws of a Mutual Association are said to be
a law unto the members.

Grosvenor v. United Society of Believers, 118
Mass. 78, 90;

Sovereign Camp Woodmen of the World v. Hall,
104 Ark. 538, 148 S. W. 526, 41 LRANS 517;

Supreme Lodge Knights of Pythias v. Knight, 117

. Ind. 489;

Bauer v. Sampson Lodge Knights of Pythias, 102
Ind. 262;

Supreme Lodge Knights of Pythias v. Stein, 75
Miss. 107, 21 So. 559, 37 LRA 775;

Supreme Lodge Knights of Pythias v. LaMalta, 95
Tenn. 157, 30 LRA 838;

Daughtry v. Supreme Lodge Knights of Pythias,
48 La. Ann. 1203;

32

Supreme Lodge Knights of Pythias v. Kutscher,
179 Ill. 340, 53 N. E. 620;
Thibert v. Supreme Lodge Knights of Honor, 78
Minn. 448, 81 N. W. 220, 79 Am. St. 412, 47
LRA 136;
Kocher v. Supreme Council Catholic Benevolent
Legion, 65 N. J. L. 649, 48 Atl. 544, 86 Am. St.
687, 52 LRA 861;
Benes v. Supreme Lodge Knights and Ladies of
Honor, 281 Ill. 134, 83 N. E. 127;
Pfister v. Gerwig, 122 Ind. 567.

Point Two.

“The Federal Statute creating the Supreme
Lodge Knights of Pythias provided that certain
persons [naming them], officers and members of the
Supreme Lodge Knights of Pythias, and their sut-
cessors, be and they are hereby incorporated and
made a body politic and corporate * * * entitle
to use and exercise all the powers, rights and priv
ileges incident to fraternal and benevolent corpora
tions within the District of Columbia. * * * That
said corporation shall have a constitution and shal
have power to amend the same at pleasure.”

Under this statute the successors of said named officers
and others constituting the Supreme Lodge, elected ani
holding office in accordance with the constitution of sail
order, had the right to enact all legislation governing sail
order.

28 U. S. Statutes at Large, pp. 96, 97;
Supreme Lodge Knights of Pythias v. Knight, 1)
Ind. 489, 20 N. E. 479, 3 LRA 409;
Dornes v. Supreme Lodge Knights of Pythias, 1
Miss. 466, 23 So. 191.

33

Point Three.

“It is a universal principle, that, where power
or jurisdiction is delegated to any public officer or
tribunal over a subject-matter, and its exercise is
confided to his or their discreton, the acts so done
are binding and valid as to the subject matter; and
individual rights will not be disturbed collaterally,
for anything done in the exercise of that discretion,
within the authority and power conferred. The only
questions which can arise between an individual
claiming a right under the acts done, and the public,
or any person denying its validity, are, power in the
officer, and fraud in the party. All other questions
are settled by the decision made or the act done by
the tribunal or officer; whether executive (1 Cranch
170-1), legislative (4 Wheat. 423 ; 2 Pet. 412; 4 Ibid.
563), judicial (11 Mass. 227; 11 S. & R. 429 adopted
in 2 Pet. 167-8), or special (20 Johns. 739-40; 2
Dow. P. C. 521, &c.), unless an appeal is provided
for, or other revision, by some appellate or super-
visory tribunal, is prescribed by law. The principles
of these cases are too important not to be referred
to, and though time does not admit of their extrac-
tion, and embodying in our opinion, we have no hesi-
tation in declaring, that they meet with our entire
concurrence, so far as applicable to this case.”

United States v. Arredondo, 31 U. S. 691, 729,
8 L. ed. 547;

New Dunderberg Mining Co. v. Old, 79 Fed. 598,
25 CCA 116;

Bradley v. Dels Lbr. Co., 105 Wis. 245, 252, 81
N. W. 396;

Beard v. Federy, 70 U. S. 478;

And to the same effect see:
Connoyer v. Schaeffer, 89 U.S. 254;
Burgess v. Gray, 57 U.S. 48;

RE Met cwery oy

Lee v. Johnson, 116 U. S. 48;

Chouteau v. U. S., 34 U. S. 137;

Haydel v. Dufresne, 58 U.S. 23;

Noble v. Union River Logging R. Co., 147 U.S.
165, 172.

Poiat Four.

It is a well settled principle that the courts of a foreign
state have no visitorial powers over a fraternal corporation,
such power belonging exclusively to the state creating such
corporation.

Eberhard v. Northwestern Mutual Life Ins. Co,
210 Fed. 520.

SECOND ASSIGNMENT OF ERRORS.

The second error complained of is as follows:

The Supreme Court of the State of Nebraska
erred in holding that no legislation of said Supreme
Lodge Knights of Pythias affecting those of its mem-
bers holding insurance certificates, is valid and ef-
fective unless the membership of said Supreme
Lodge shall be composed entirely of members hold-
ing insurance certificates and shall always be bien-
nally elective by the members holding such insurance
certificates, whereas, the Federal Statute creating
such corporation (28 U. S. Statutes at Large, pp.
96, 97), makes no such restriction and expressly
creates the officers and members of the Supreme
Lodge Knights of Pythias and their successors, “as
a body corporate,” giving certain enumerated pow-
ers thereto, one of which is to issue insurance cer-
tificates to those of its members desiring same.”

(Tr., p. 333, par. 2.)

35

Point Five.

The courts of one state will not undertake to supervise
the rates of insurance fixed by a foreign corporation and
will not enjoin the collection of such rate.

Clark v. Mutual Reserve Fund Life Association,
14 App. Cas. (D. C.) 154, 48 LRA 390;

Conden v. Mutual Reserve Fund Life Association,
89 Md. 99, 44 LRA 149, 73 Am. St. 169, 42
Atl. 944; ,

Pierce v. Equitable Life Assurance Society, 145
Mass. 56, 1 Am. St. 433, 12 N. E. 858;

Smith v. Mutual Life Ins. Co., 14 Allen 336;

Ebert v. Mutual Reserve Fund Life Association,
81 Minn. 116, 83 N. W. 506, 834, 84 N. W. 457;

People v. Brotherhood of Painters, Decorators and
Paperhangers of America, 218 N. Y. 115, 112
N. E. 752;

Howard v. Mutual Reserve Fund Life Association,
125 N. C. 49, 45 LRA 853, 34 S. E. 199;

Royal Fraternal Union v. Lunday, 51 Tex. Civ.
App. 6387, 113 S. W. 185;

Taylor v. Mutual Reserve Fund Life Association,
97 Va. 60, 45 LRA 621, 33 S. E. 385;

Talbert v. Modern Woodmen of America, 83 Wash.
287, 145 Pac. 183.

Point Six.

The levying of assessments upon its members by a mu-
tual insurance company or by a fraternal society is a matter
relating to the internal affairs of such corporation and the

AOE APAAP, apne a OAS NO ab eipeah

36

courts of another state have no jurisdiction to strike down
such assessments.

Clark v. Mutual Reserve Fund Life Association, 14
App. Cas. (D. C.) 154, 43 LRA 390;

Condon v. Mutual Reserve Fund Life Association,
89 Md. 92, 93, 73 Am. St. 169, 44 LRA 149;

State v. Denton, 229 Mb. 187, 188 Am. St. 417, 129
S. W. 709.

Brenizer v. Supreme Council Royal Arcanum, 141
N. C. 409, 6 LRANS 235, 53 S. E. 835;

Howard v. Mutual Reserve Fund Life Association,
125 N. C. 49, 45 LRA 853, 34S. E. 199;

Royal Fraternal Union v. Lunday, 51 Tex. Civ.
App. 637, 113 S. W. 185;

Taylor v. Mutual Reserve Fund Life Association,
97 Va. 60, 45 LRA 621, 33 S. E. 385;

State v. Shain, 245 Mo. 78, 149 S. W. 479.

Point Seven.

Especially is this true where the courts of the domi-
ciliary state have construed the by-laws and charter of such
corporation and have declared such assessments valid.

Supreme Council Royal Arcanum v. Green, 237 U.
S. 531, LRA 1916A 771, 59 L. ed. 1089;

(Reversing 206 N. Y. 591, 100 N. E. 411.)

Gaines v. Supreme Council Royal Arcanum, 140
Fed. 978;

(Injunction against increase of rates denied by
Federal Court in Tennessee, defendant being a
Massachusetts Corporation.)

37

Supreme Council Royal Arcanum v. Brashears, 39
Md. 624, 73 Am. St. 244, 43 Atl. 866;

Hartford Life Ins. Co. v. Ibs, 237 U. S. 662, 59 L.
ed. 1165, LRA 1916A, 765.

Point Eight.

The Supreme Lodge Knights of Pythias now has and
maintains a representative form of government. Its gov-
ernment is exactly the same as at the beginning. It has
never been changed and the fact that others besides those
holding certificates of insurance may be eligible not only to
vote for, but to serve as supreme representatives to the Su-
preme Lodge does not deprive it of its representative form
of government.

13 Harvard Law Review 67 (Historical Survey by
Prof. Dicey) ;

Westerman v. Supreme Lodge Knights of Pythias,
196 Mo. 670, 94S. W. 470, 5 LRANS 1114;
Tice v. Supreme Lodge Knights of Pythias, 204

Mo. 349, 100 S. W. 519;
Saunders v. Robinson, 144 Mass. 306, 10 N. E. 815.

THIRD ASSIGNMENT OF ERRORS.

The third assignment of errors is as follows:

“The Supreme Court of the State of Nebraska
erred in holding that the power to strike down the
statutes enacted by said Supreme Lodge Knights of
Pythias inhered in said state of Nebraska, after
the validity of said questioned statute had been
finally decided, and held valid in two decisions of
the Honorable, the Supreme Court of the United
States.

LO IER LDN LB IR LI LE A AI TE ADORE AAI a

38

Point Nine.

Where the highest court of the jurisdiction creating the
corporation has declared its charter powers, such decision
will be followed by the courts of other states in which such
corporation may have members.

Supreme Council Royal Arcanum v. Green, 237 U.
S. 531, 59 L. ed. 1089, LRA 1916A, 771;

Hartford Life Ins. Co. v. Ibs, 23% U. S. 662, 59 L.
ed. 1165, LRA 1916A, 765;

Hartford Life Ins. Co. v. Barber, 245 U. S. 146,
62 L. ed. 208.

Point Ten.

The contract of membership in a fraternal beneficiary
society is made with reference to, and includes the consti-
tution and by-laws or Supreme Statutes of the order, of
which every member is bound to take notice, whether es-
pecially referred to in the contract or not, and whether or
not such constitution and by-law is known to the member.

Bauer v. Sampson Lodge Knights of Pythias, 102
Ind. 262, 267;

Supreme Lodge Knights of Pythias v. Knight, 117
Ind. 489, 3 LRA 409;

Supreme Lodge Knights of Pythias v. La Malta, 95
Tenn. 157, 30 LRA 838;

Mutual Assurance Society v. Korn, 7 Cranch 396,
3 L. ed. 383;

Fullenwider v. Supreme Council Royal League, 180
Ill. 621, 625;

39

Commonwealth v. Massachusetts Mutual Ins. Co.,
112 Mass. 116;

Modern Woodmen of America v. Tevis, 117 Fed.
369;

Shipman v. Protected Home Circle, 174 N. Y. 398,
409.

Point Eleven.

The right of a fraternal beneficiary society to readjust
and to increase its rates, where desirable, or necessary, is
inherent in the very nature of such society.

Supreme Lodge Knights of Pythias v. Mims, 241
U. S. 574, 60 L. ed. 1179;

Supreme Lodge Knights of Pythias v. Smyth, 245
U. S. 594, 62 L. ed. 492;

Fullenwider v. Supreme Council Royal League, 180
Ill. 621, 54 N. E. 485, 72 Am. St. 239;

Note, 31 LRANS 416-417;

Wineland v. Knights of Maccabees, 148 Mich. 608;

Reynolds v. Supreme Council Royal Arcanum, 192
Mass. 150, 78 N. E. 129, 7 LRANS 1154;

Miller v. National Council Knights and Ladies of
Security, 69 Kans. 234, 76 Pac. 830;

Supreme Lodge Knights of Pythias v. Knight, 117
Ind. 489, 3 LRA 409;

Conner v. Supreme Commandery Golden Cross,
117 Tenn. 549, 97 S. W. 306;

Gilmore v. Knights of Columbus, 77 Conn. 58, 58

Atl. 223, 107 Am. St. 17, 1 Am. & Eng. Ann.

Cas. 715;

‘. GRAN eR, DB Se ASRS SAAS eee ped eb tt? ON AAT LATER

40

Shepperd v. Bankers Union of the World, 77 Neb.
85, 108 N. W. 188;

Norton v. Catholic Order of Foresters, 138 Ia. 464,
114 N. W. 893, 24 LRANS 1030.

FouRTH ASSIGNMENT OF ERRORS.

The Supreme Court of the State of Nebraska erred in
refusing to give effect to the judgment and decree of the
Honorable, The United States District Court for the Dis-
trict of Indiana in the case of Joseph Holt et al. v. Supreme
Lodge Knights of Pythias, wherein several members of said
order who held insurance certificates therein, and who were
similarly situated with the plaintiff herein, in all respects,
and who brought said suit in their own behalf and in behalf
of all others similarly situated, for the express object and
purpose of having said statutes increasing the rates, which
are the same statutes involved in this action, set aside and
held invalid and void, and to enjoin said Supreme Lodge
Knights of Pythias from enforcing same, and which judg-
ment and decree was appealed from, and affirmed, by the
Honorable Circuit Court of Appeals for the Seventh Circuit
which judgments and decrees are now in full force and
effect (235 Fed. 885, 149 CCA 197, 248 U. S. 588, 63
L. ed. 434).

Point Twelve.

Where a class suit is brought by the plaintiff, or plain-
tiffs on his, or their own behalf and on behalf of all others
similarly situate, all persons standing in such relation are
considered as parties to the suit and are conclusively bound
by the judgment and decree therein.

ARE NS ARI,

41

Mandeville v. Riggs, 2 Pet. 482;

Smith v. Swormstedt, 16 How. 288, 14 L. ed. 942
(Methodist Book Concern Case) ,

Bacon v. Robertson, 18 How. 480, 15 L. ed. 499;

Cockburn v. Thompson, 16 Ves. 321, 326, 328, 33
E R. 1005;

Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 59 L.
ed. 1165, LRA 1916A, 765; ;

Duvall v. Synod of Kansas, 222 Fed. 669, 1388 CCA
217;

Watson v. National Life, etc., Co., 162 Fed. 7, 12,
88 CCA 380;

Lovell v. St. Louis Mut. Life Ins. Co., 111 U.S. 264,
28 L. ed. 423;

Supreme Tribe of Ben Hur v. Cauble, 255 U. S.
356, 65 L. ed. 673;

Supreme Council Royal Arcanum v. Green, 237 U.

S. 531, 59 L. ed. 1089, LRA 1916A, 771;

Looney v. Eastern Texas R. Co., 247 U.S. 214, 62
L. ed. 1084;

Equity Rule 38, U. S. Supreme Court 1912, 226 U.
S. 659, 57 L. ed. 1643;

1 Foster, Federal Practice (6th Ed.), § 114.

Point Thirteen.

Such judgment or decree is res judicata in all subsequent
suits by or between said society and all members thereof and
their beneficiaries as to all matters actually litigated within
the issues or which might properly have been litigated with-
in said issues.

Fischli v. Fischli, 1 Blackf. 360, 12 Am. Dec. 251;

Alerding v. Allison, 170 Ind. 252, 258, 127 Am. St.
363 note;

State v. Buffalo County, 6 Neb. 461;

Slater v. Skeirving, 51 Neb. 108, 70 N. W. 492, 66
Am. St. 444;

Harris v. Harris, 36 Barb. 88;

Ruckman v. Union Railway Co., 45 Or. 578, 78 Pac.
748, 69 LRA 480;

Bates v. Bodie, 245 U.S. 520, 526, 62 L. ed. 444;

Mitchell v. First National Bank of Chicago, 180 U.
S. 471, 45 L. ed. 627;

Dowell v. Applegate, 152 U. S. 327, 345, 38 L. ed.
463 ;

United States v. Haytien Republic, 154 U.S. 118,
129, 38 L. ed. 930;

Dimock v. Revere Copper Co., 117 U. S. 559, 566,
29 L. ed. 994;

Harshman v. Knox County, 122 U. S. 306, 317, 30
L. ed. 1152.

Point Fourteen.

A new ground of invalidity, or the omission thereof,
which would have given the plaintiffs a valid cause of ac-
tion, or any omitted facts which would have made out the
plaintiff’s case in such suit, does not render the judgment
less conclusive or less binding.

Bell County, etc., School v. Pineville Graded School,
19 Ky. Law Rep. 789, 42 S. W. 92 (a statute
held valid. Presumed to be based upon all pos-
sible objections to validity) ;

_ 2a

43

Jordan v. Van Epps, 85 N. Y. 427, 436 (defendant
failed to set up all her claims of title) ;

Cannon v. Castleman, 162 Ind. 6 (failed to allege
fraud in contract) ;

Martin v. Abbott, 1 Neb. (Unof.) 54, 95 N. W. 356;

Singer v. Hutchinson, 183 Ill. 606, 56 N. E. 388, 75
Am. St. 133 (failure to set up all defenses) ;

| Hilgerson v. Hicks, 201 Ill. 374, 66 N. E. 360;

Holt County v. National Life Ins. Co., 80 Fed. 686,
25 CCA 469;

Board of Commissioners of Lake County v. Platt,
79 Fed. 567, 25 CCA 87;

Dimock v. Revere Copper Co., 117 U. 8S. 559, 29 L.
ed. 994;

Andrews Bros. Co. v. Youngstown Coke Co., 86
Fed. 585, 596, 30 CCA 293;

Reynolds v. Mandel, 175 Ill. 615, 51 N. E. 649;

Melntire v. Williamson, 63 Kan. 279, 65 Pac. 244;

Kloke v. Gardels, 52 Neb. 117, 71 N. W. 955.

Point Fifteen.

When a question is necessarily decided in effect, though
not in express terms, between the parties to a suit, they
can not raise the same question in any other suit or in any
other forum.

Gregory v. Molesworth, 3 Atkins 626, 26 E. R.
1160;

Henderson v. Henderson, 3 Hare 100, 67 E. R. 3138;

Franke v. Franke, 15 Ind. App. 529, 549;

Griffin v. Wallace, 66 Ind. 410, 417;

SOE SR

44

Bates v. Bodie, 245 U.S. 520, 526, 62 L. ed. 444;
National Circle, Daughters of Isabella v. National
Order Daughters of Isabella, 270 Fed. 723;
Straus v. American Publishers Assn., 201 Fed.
306, 119 CCA 544;

Sperry, etc., Co. v. Blue, 202 Fed. 82 120 CCA 1;

Mitchell v. First National Bank of Chicago, 180 U.
S. 471, 45 L. ed. 627;

Mazzariello v. Doherty, 204 Fed. 245, 122 CCA 513;

Union Pacific R. Co. v. Wyler, 158 U. S. 285, 39
L. ed. 983;

Boston, etc., R. Co. v. Hurd, 108 Fed. 116, 47 CCA
615, 56 LRA 192;

Cotter v. Boston, etc., St. R. Co., 190 Mass. 302,
76 N. E. 910;

Columbus v. Webster Mfg. Co., 84 Fed. 592, 28
CCA 225, 43 LRA 195.

Point Sixteen.

Where a class suit is brought by the plaintiff on his own
behalf, and on behalf of all others similarly situate, all per-
sons standing in such relation are considered as parties to
the suit and are bound by the judgment or decree therein.

1 Foster, Federal Practice (6th ed.), § 114;

Smith v. Swormstedt, 16 How. 288, 14 L. ed. 942
(Methodist Book Concern Case) ;

Mandeville v. Riggs, 2 Pet. 482;

Cockburn v. Thompson, 16 Ves. 321, 326, 328, 33
E. R. 1005;

Bacon v. Robertson, 18 How. 480, 15 L. ed. 499;

45

Hartford Life Ins. Co. v. Ibs, 237 U. S. 662, 59 L.
ed. 1165, LRA 1916A, 765;

Duvall v. Synod of Kanses, 222 Fed. 669, 188 CCA
217;

Watson v. National Life, ete., Co., 162 Fed. 12, 88
CCA 380;

Harmon v. Auditor, 123 ll. 132, 5 Am. St. 506, 13
N. E. 161, 164 (bond holders) ;

Supreme Tribe of Ben Hur v. Cauble, 255 U. S.
356, 65 L. ed. 673;

Equity Rule 38, U. S. Sup. Ct. 1912, 226 U. S. 659,
57 L. ed. 1643;

Supreme Council Royal Arcanum v. Green, 237 U.
S. 531, 59 L. ed. 1089, LRA 1916A, 771 (re-
versing 206 N. Y. 591, 100 N. E. 411);

Looney v. East Texas R. Co., 247 U. S. 214, 62 L.
ed. 1084.

Point Seventeen.

A judgment or decree constitutes a conclusive estoppel,
until set aside, between the parties and their privies, as to
all matters litigated, or which might have been litigated
under the issues.

Dowell v. Applegate, 152 U. S. 327, 345, 38 L. ed.
463 ;

United States v. Haytien Republic, 154 U. S. 118,
129, 38 L. ed. 930;

Dimock v. Revere Copper Co., 117 U. S. 566, 29 L.
ed. 994;

Harshman v. Knox County, 122 U. S. 306, 317, 30

L. ed. 1152.

46

Point Eighteen.

A plaintiff can not split a cause of action so as to litigate
part of it in one suit and part in another ; so the plaintiffs in
the Holt case were required to present all objections to the
validity of the statutes raising the rates, in their complaint
or be barred thereafter from asserting them.

People v. Detroit, etc., R. Co., 157 Mich. 144, 121
N. W. 814;

Richardson v. Opelt, 60 Neb. 180, 82 N. W. 377;

Johnson v. Payne, 11 Neb. 269, 9 N. W. 81;

Beck v. Devereux, 9 Neb. 109, 2 N. W. 365;

United States, ex rel. v. City of New Orleans, 98
U. S. 381;

United States, ex rel. v. County Court of Knoz
County, 122 U. S. 306, 30 L. ed. 1152;

Ralls County v. United States, ex rel., 105 U.S.
733, 26 L. ed. 1220;

Mayor of Davenport v. United States, ex rel., 76 U.
S. 409, 19 L. ed. 704;

Grand Island, etc., R. Co. v. Baker, 6 Wyo. 394, 71
Am. St. 943, 34 LRA 835, 841;

Mashlonpah v. Mayhew, 138 Wis. 561, 119 N. W.
826;

Nauyalis v. Philadelphia, etc., Co., 270 Fed. 93, —

CCA —;

Werlein v. City of New Orleans, 177 U. S. 390, 44

L. ed. 817.

47

FIFTH ASSIGNMENT OF ERRORS.

The Fifth assognment of errors is as follows, to-wit:
The Supreme Court of the State of Nebraska erred in
holding that the plaintiff in this action was not bound by
the judgment and decree of the District Court of the United
States for the District of Indiana in the case of Joseph Holt
et al., v. Supreme Lodge Knights of Pythias, which suit was
brought and maintained by said Joseph Holt and others,
on behalf of themselves and of all others similarly situate,
and wherein the validity of the supreme statutes of said
Supreme Lodge Knights of Pythias, was affirmed and set at
rest, the plaintiff herein, being similarly situate with the
plaintiffs in said Holt case * * * and the same being
a right guaranteed to the plaintiff in error under and by
virtue of Article 4, Section 1, of the Federal Constitution,
guaranteeing full faith and credit by one state to the judi-
cial proceedings of every other state.

(Tr., p. 333, par. 4.)

Point Nineteen.

Article 4, Section 1, of the Federal Constitution is in
part as follows:

“Full faith and credit shall be given in each
state to the public acts, records and judicial proceed-
ings of every other state. And the Congress may by
general laws prescribe the manner in which such
acts, records and proceedings shall be proved, and
the effect thereof.”

48

Point Twenty.

The judgments of the Federal Courts in the various
states have the same binding effect upon the parties and
their privies, as the judgments of the State courts.

Metcalf v. City of Watertown, 153 U. S. 671, 38
L. ed. 861;

Union, etc., Bank v. Memphis, 189 U. S. 71, 47 L.
ed. 712;

Hancock National Bank v. Farnum, 176 U. S. 640,
45 L. ed. 619;

First National Bank v. City of Covington, 129 Fed.
792, 804;

Old Dominion Copper, ete., Co. v. Bigelow, 208
Mass. 159, 40 LRANS 314, 89 N. E. 193;

Northern Assurance Company v. Grand View
Building Assn., 203 U. S. 106, 51 L. ed. 109;

Glencove Granite Co. v. City Trust, etc., Co., 118
Fed. 383, 55 CCA 212 (certiorari denied, 187
U. S. 649, 47 L. ed. 348) ;

Alkine Grocery Co. v. Richesin, 91 Fed. 79, 83.

Point Twenty-one.

A judgment of the Federal Court in a state is entitled
to the same credit in another state as the judgment of the
State Court of equal rank of the state wherein the federal

judgment was rendered.
Metcalf v. City of Watertown, 153 U. S. 671, 38
L. ed. 861;
Union, etc., Bank v. Memphis, 189 U. S. 71, 47 L.
ed. 712;

49

Hancock National Bank v. Farnum, 176 U. S. 640,
44 L. ed. 619;

Woolery v. Grayson, 110 Ind. 149, 10 N. E. 935 .

Cincinnati, etc., R. Co. v. Wynne, 14 Ind. 385;

Fidler v. Gilchrist, 60 Ind. App. 363, 109 N. E. 796;

Crescent City, etc., Co. v. Butcher’s Union, etc.,
120 U. S. 141, 157, 30 L. ed. 614, 617;

Dupasseur v. Rochereau, 21 Wall. 130, 135, 22 L.
ed. 588, 590 (state law) ;

Embry v. Palmer, 107 U.S. 3, 27 L. ed. 346;

Pittsburg, etc., R. Co. v. Long Island Loan, ete.,
Co., 172 U.S. 493, 43 L. ed. 528.

Point Twenty-two. 2

The Supreme Court of the United Stated has the exclu-
sive final jurisdiction to determine whether the proper
effect has been given by the courts of one state to the judg-
ments of courts in other states.

Hadacheck v. Chicago, etc., R. Co., 74 Neb. 385,
104 N. W. 878.

Point Twenty-three.

Under the Federal Constitution a judgment rendered by
the courts in one state must be given the same implication
and force in all other states which it has in the courts of the
state where rendered, and whatever pleas could be made
thereto in the courts of such state, and no others, can be
made to it in the foreign court.

Hampton v. McConnel, 3 Wheat. 234, 4 L. ed. 378,
note top page 804;

50

Mills v. Durgee, 7 Cranch 481, 3 L. ed. 411, note
top page 576;

American Mutual Life Ins. Co. v. Mason, 159 Ind.
15, 16, 18 N. E. 525;

Suydam v. Barber, 18 N. Y. 468, 471, 75 Am. Dec.
256;

Barras v. Bidwell, 3 Woods 7, Fed. Cas. No. 1039;

Wilcox v. Cassick, 2 Mich. 168;

Fletcher v. Ferrel, 9 Dana (Ky.) 377, 35 Am. Dec.
148;

Bank v. Wheeler, 28 Conn. 439, 73 Am. Dec. 684;

Fauntleroy v. Lum, 210 U. S. 230, 52 L. ed. 1039;

Sharon v. Hill, 26 Fed. 337, 391;

Morris v. Burgess, 116 N. C. 42, 21 S. E. 26.

THE SIXTH ASSIGNMENT OF ERROR.

The sixth assignment of error is as follows:

The Supreme Court of the State of Nebraska erred in
holding that the plaintiff in this action was not bound by
the judgment and decree of the District Court of the United
States for the District of Indiana in the case of Joseph Holt,
et al. v. Supreme Lodge Knights of Pythias, which suit was
brought and maintained by said Joseph Holt and others, on
behalf of themselves and of all others similarly situate, and
wherein the validity of the supreme statutes of said Su-
preme Lodge Knights of Pythias, was affirmed and set at
rest, the plaintiff herein being similarly situate with the
plaintiffs in said Holt case, and the same being a right guar-
anteed to the plaintiff in error by virtue of § 905 R.S. U.S.
§ 1519 U. S. Comp. Stat. 1916, providing that the records
and judicial proceedings of any state or territory or of any

—

51

such country, shall have such faith and credit given to them
in every court within the United States as they may have
by law or usage in the courts of the State from which they
are taken. (Tr., p. 334.)

Point Twenty-four.

The force and validity of a judgment of another state
must be determined by the law of the state rendering the
same.

Section 905 R. S. U. S., § 1519, U. S. Comp. Statutes
1916, among other things provides that the records and ju-
_ dicial proceedings in one state “shall have such faith and

credit given to them in every court within the United States
as they have by law or usage in the courts of the State from
whence the said records are or shall be taken.”

Christmas v. Russell, 5 Wall. 290, 18 L. ed. 475.
(An action in Mississippi Federal Court on a
Kentucky judgment enforcing a Mississippi
contract. Held, that the Mississippi state stat-
ute prohibiting Mississippi state courts from
taking jurisdiction and enforcing judgments
taken in other states where Mississippi would
not render such judgments in her own courts,
is void.)

Converse v. Hamilton, 224 U. S. 248, 56 L. ed. 749.

(Wisconsin Court declines to permit suit on

judgment of Minnesota Court enforcing double

liability of stockholders on the ground that

Wisconsin did not enforce such liability against

her own people. Held, Wisconsin decision

must be reversed.)

52

Point Twenty-five.

A final judgment or decree in the state of Indiana con-
clusively settles all questions within the issues in a cause,
and also all other questions involved in the subject-matter of
the litigation which might have been properly litigated in
the action.

Fischli v. Fischli (1825), 1 Blkf. 360, 12 Am. Dec.
251;

Crouse v. Holman, 19 Ind. 30, 36;

Richardson v. Jones, 58 Ind. 240 243;

Marshall v. Stewart, 80 Ind. 189;

Ballard v. Franklin Life Ins. Co., 81 Ind. 239;

Elwood v. Beymer, 100 Ind. 504;

Indiana, etc., R. Co. v. Allen, 113 Ind. 581, 587;

Wilson v. Buell, 117 Ind. 315, 317, 20 N. E. 231;

Hoefgen v. Harness, 148 Ind. 224, 229, 47 N. E.
470;

Finley v. Cathcart, 149 Ind. 470, 477, 48 N. E. 586,
49 N. E. 381;

Walker v. Walker, 150 Ind. 317-325, 50 N. E. 68;

Maynard v. Waidlich, 156 Ind. 562, 573, 60 N. E.
348 ;

Skelton v. Sharp, 161 Ind. 384-386, 67 N. E. 535;

Cannon v. Castleman, 162 Ind. 6-8, 69 N. E. 455;

Ryan v. Rhodes, 167 Ind. 121, 126, 76 N. E. 249,
78 N. E. 330;

Alerding v. Allison, 170 Ind. 252, 258, 83 N. E.
1006, 127 Am. St. 363;

Knotts v. Clark Construction Co., 131 N. E. (Ind.)
921.

53

THE SEVENTH ASSIGNMENT OF ERRORS.

The seventh assignment of errors is as follows:

The Supreme Court of the State of Nebraska erred in
holding that the plaintiff, being the defendant in error here-
in, is not estopped by virtue of his membership in said Su-
preme Lodge Knights of Pythias as created by federal stat-
ute, 28 U. S. Stat. at Large, pp. 96, 97, from again raising
the question of the validity of the rates enacted by said Su-
preme Lodge Knights of Pythias in 1910, for the reason that
Joseph Holt and others in their own behalf, and in behalf
of all others similarly situate, including the defendant in
error’s assured, brought and maintained a suit for the pur-
pose of declaring void the same statutes involved in this
action, and wherein a judgment and a decree of the United
States District Court for the District of Indiana was ren-
dered that said statutes were valid and omer (Tr,
p. 334, par. 2.)

Point Twenty-six.

Apart from the fact that a stockholder is conclusively
presumed to be represented in and to be a party to a class
suit, a judgment duly rendered by a court of competent
jurisdiction which is binding upon the corporation, is
equally binding upon the stockholders of such corporation,
and they are estopped after litigation by their company
from again raising the same question in a suit by themselves
against the same corporation.

Converse v. Ayer, 197 Mass. 443, 84 N. E. 98;
Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888,
49 LRA 301;

oma te we ren — .

54

King v. Cochrane, 76 Vt. 141, 56 Atl. 667, 104 Am.
St. 922;

Selig v. Hamilton, 234 U.S. 652, 58 L. ed. 1518;

Converse v. Hamilton, 224 U. S. 248, 56 L. ed. 749;

Bernheimer v. Converse, 206 U. S. 516, 51 L. ed.
1163 ;

Irvine v. Baker, 225 Fed. 834;

Spargo v. Converse, 191 Fed. 823, 112 CCA 337;

Goss v. Carter, 156 Fed. 746, 84 CCA 402;

Johnson v. Libby, 111 Me. 204, 88 Atl. 647, Ann.
Cases 1916-C 681.

(The above cases were for the recovery of stockholders’
liability, they are strictly analogous to the case at bar for
the reason that in this case the society had increased its
rates so as to mature its obligations and the present suit was
brought to restrain the society from enforcing the increased
liability.)

THE EIGHTH ASSIGNMENT OF ERRORS.

The eighth assignment of errors is as follows:

The Supreme Court of the State of Nebraska erred in
holding that the Supreme Lodge Knights of Pythias did not
have and maintain, at the time of the enactment of the stat-
utes in question, increasing the rates, a representative form
of government, whereas it had and maintained at said time
and ever, the same form of government which it had at its
creation by federal statute, 28 U. S. Statute at Large, pp.
96, 97.

= e
e
were

55

Point Twenty-seven.

Where a corporation is created with a certain form of
government and it continues to exercise its duties in strict
accordance with the form designated and prescribed by said
statute creating it, neither its members, nor their privies,
have the right to attack such form of government in an ac-
tion for benefits.

Thomas v. Musical Mutual Protective Union, 121
N. Y. 45, 24 N. E. 24,8 L. R. A. 175;

Bauer v. Sampson Lodge Knights of Pythias, 102
Ind. 262;

People v. St. George’s Society, 28 Mich. 261;

Kent v. Quicksilver Mining Company, 78 N. Y. 159.

THE NINTH ASSIGNMENT OF ERRORS.

The ninth assignment of errors is as follows:

The Supreme Court of the State of Nebraska erred in
holding that the Supreme Lodge Knights of Pythias did not
have and maintain at the time of the enactment of the stat-
utes in question, increasing the rates, a representative form
of government, whereas it was alleged in the answer and
shown by the evidence that said question was expressly de-
cided adversely by the judgment and decree of the United
States District Court for the District of Indiana, in the case
of Joseph Holt and others against Supreme Lodge Knighis
of Pythias, wherein Joseph Holt and others sued in their
own behalf and in behalf of all others similarly situate, in-
cluding defendant in error’s assured, to set aside said stat-

"utes increasing the rates, as invalid and void. (Tr., p. 334,
par. 4.)

=~

56

Point Twenty-eight.

The question whether the Supreme Lodge Knights of
Pythias maintained a representative form of government at
the time of the increase of rates involved in this cause was
directly involved in the issues in the Holt case and in the
special findings in said cause. It was expressly found that
the plaintiff in error did have and maintain a representa-
tive form of government at said time and at all other times
and the said special findings were specially approved by the
court; and judgment was rendered thereon for the plaintiff
in error.

The defendant in error herein is therefore concluded by
said judgment in said Holt case from litigating said ques-
tion of representative form of government over again in
this or any other cause of action.

(See authorities heretofore cited under points
13-18, pages 41-46.)

57

BRIEF OF ARGUMENT.

By this action defendant in error seeks to recover upon
a benefit certificate issued by the plaintiff in error to her
decedent, designating the defendant in error as his bene-
ficiary. The decedent paid his dues regularly until January
1, 1911, at which time the newly enacted increased rates
took effect. He refused to pay the increased rate but con-
tinued to tender the old rate to the date of his death. The
real question at issue is the validity of the increased rates.
At his death, proper proofs were submitted and liability
denied, and this action was begun. At the first trial of the
cause the court found in favor of the plaintiff in error. The
judgment following said decision was reversed by the Su-
preme Court of Nebraska on the ground that the plaintiff in
error did not have nor maintain a representative form of
government and therefore the statutes increasing the rates
were void. A second trial of said cause resulted in a deci-
sion in favor of the defendant in error and the judgment
rendered thereon was affirmed by the Supreme Court upon
the same ground, that is, that the plaintiff in error did not
have nor maintain a representative form of government and
therefore the increase of rates was void.

PLAINTIFF IN ERROR CREATED BY FEDERAL STATUTES.

The plaintiff in error was created by a special act of Con-
gress (28 U. S. Stat. at Large, pp. 96-97) (Tr., pp. 50-51).
The entire rights and charter powers of this society are con-
tained within the terms of said federal statute. A reference
thereto will show that certain individuals, naming them, to-

on
ar ”
FOLSOM 2

es eee

Number 214.

SUPREME COURT

UNITED STATES

October Term, 1923.

SUPREME LODGE KNIGHTS OF PYTHIAS, PLAINTIFF
IN ERROR,

V.
GEORGE 0. MEYER, DEFENDANT IN ERROR.

IN ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA,

BRIEF OF DEFENDANT IN ERROR.

. W. Livingston,
. F. Reavis,
Attorneys for Defendant in Error.

WEKESSER-BRINKMAN CO. Law Briefs, Lincoln, Neb.

APSE Re Ren eames:

INDEX

Page
TE POET ECP E CT OLE TET CIR eT 5
I ty oc ae ea ea eke ea erate 6
SN IE SENS IN 0.9 ws ech 9s pa asc 'ak. oa bid oe Ke we Re oe 21
Aka AAR S RAE CERCA EEE OREO CU eee a kee 20
SME APR ew kaa A ae Raa RAK RR KA ERO ERC ROe Oe 21
ee eS bee aA (oto ge Pe a 2
Representative Form of Government ................ 16
ND a vie W wih ae cele oa ole ee Wa Walks Cae ea wae ak 21

Society must file copies of Constitution and Amendments — 10
Statutes Regulating Foreign Corporations............ 14
SG OE RUUNO 20s shy ane Peev keet neens Cates kccee 1

TABLE OF CASES.

A

acts of Nebraska 1897, Chap. 47 ..4..000ccccscscccen 3, 4
Allen vy. Argiumbanu, 198 U. S. 149, 49 L. Ed. 990.... 2,8
Arkansas Southern Railroad Company v. German Na-

tional Bank, 207 U. 8. 270, 52 L. Ed. 201.......... 2,9

B
Briggs v. Royal Highlanders, 84 Neb. 834, 122, N.

We MR nk baa i gall ad CkC OG DOR Ke EPAPER OER Eyes 4,17
D
Doyle vy. Continental Insurance Company, 94 U. 8. 535,
ee GUE: ava ci sdud bid zuson kun stiles vine 4,14
Dueat v. Chicago, 10 Wall. 410, 19 L. Ed. 972........ 3,14

H

art v. Knights of Maccabees, 88 Neb. 428, 119 N.
MARIS: anwevrw

SG eB eT a had a ah aN gn Ee a

TABLE OF CASES—(Continued).

I

Interstate Amusement Company y. Albert, 239 U. 8.
ON a a ere rer rer rrr rr err rr 4,15

Johnson v. Bankers Union, 83 Neb. 48, 118 N. W. 1104. 4,17
K

Knights of Maccabees vy. Nitsch, 69 Neb. 372, 95 N. W.

Lafayette Insurance Company y. French, 18 Howard
ES Se eer err 3
Leathe v. Thomas, 207 U. 8. 93, 52 L. Ed. 11%......... 2,8

M

Metzger v. Royal Neighbors, 86 Neb. 61, 124 N. W. 9138. 3,12
Murdock vy. Mayor and Aldermen of Memphis, 20 Wall.

(U. 8.) 590, 22 L. Ed. 429............ sce e ee ee eee 2,6
4
Paul vy. Virginia, 8 Wall. 168, 19 L. Ed. 857........--- 3, 14
Prudential Insurance Company of America v. Cheek,
959 U. &. 530, 66 L. Ed. 1044. .........0 ccc ecsccoes 4,15

Q

Quong Ham Wah Co. vy. Industrial Accident Company,
955 U. &. 445, 65 L. Ed. 723.... 2... ccc ccc ccencess 5,19

State v. Insurance Company of North America, 71 Neb.
320, 99 N. W. 36 2... cece eee eee cere eee e ee eees

ee i Oo Oa eS he ee

NUS ete) OL GD a de ee eee

TABLE OF CASES— (Continued).

=
Page
Thornton v. Duffy, 254 U.S. 361, 65 L. Ed. 304...... 4,19
Tomson vy. lowa Traveling Men's Assn., 88 Neb. 399,
OU MN e's kk bine wthid g's acelavm «6a wes Nd ves 3,13
U
United States Bank of August v. Earle, 13 Peters 519,
NS i TRG NRK Sc dN nies Kae WAG 6 dae bee ke 3
Ww

Ward & Gow v. Krinsky, 259 U. S. 503, 66 L. Ed. 1033. 5,19
Waters-Pierce Oil Company vy. Texas, 212 U. 8. 112,
53 L. Ed. 431

PRIDE Os Sa ed SLA ae Gtr RE A Mi tt A ea is

oy aah te one ate Stee eat Re HORA EAN ES

Number 214.

IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term, 1922,

SUPREME LODGE KNIGHTS OF PYTHIAS, PLAINTIFF
IN ERROR,

V.
GEORGE O. MEYER, DEFENDANT IN ERROR.

IN ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA,

BRIEF OF DEFENDANT IN ERROR.

D. W. Livinastron,
(. F. REAvIs,

Attorneys for Defendant in Error.

STATEMENT OF CASE.

The statement of the case by the plaintiff in error is quite
mill and substantially correct, but we wish to add that the
hatter of the effectiveness of the increase of rates provided
or hy the amendment to the constitution of the plaintiff in
ror society January 1, 1911, is an issue under the pleadings
(Tr. pp. 18, 19 and 25).

ERE ST Le BRR ORE RS ot Oe

f
4

Saban

gay,

2? SUPREME LODGE K. OF P. V. MEYER. a a

Under the laws of Nebraska, adopted in 1897, under which
the plaintiff in error society claims to operate, it was the
duty of the society to file with the auditor of public accounts
a copy of its constitution and by-laws, duly certified by the
secretary or corresponding officer. There is no proof that
such copy was ever filed. This law further provided that
before any amendment, change or alteration in the constitu.
tion or by-laws of such society should be in force a copy
thereof, duly certified by its secretary or corresponding officer,
shall be filed by the society with the Auditor of Public Ae-

counts. There is no proof that such copy was filed.

Express provision is contained in the amendment affecting
the rates here in question exempting members from the opera-
tion thereof, and reserving the former section fixing rates to
apply to them in any state wherein any legal or equity pro
ceeding there has been a determination that such amendment

does not apply (Tr. p. 288).

POINTS AND AUTHORITIES.
Point I.

There is no federal question involved in this case and the
Supreme Court is without jurisdiction, and the petition in
error must be denied.

Murdock vy. Mayor and Alderman of Memphis, =!
Wall. (U. 8.) 590, 22 L. Ed. 429.

Allen v. Arguinbau, 198 U.S. 149, 49 L. Ed. 990.

Leathe v. Thomas, 207 U. 8. 93, 52 L. Ed. 118.

Arkansas Nouthern Railroad Company V. German
National Bank, 207 U. 8. 270, 52 L. Ed. 201.

Waters-Pierce Oil Company V. Teras, 212 U. S. 112
53 L. Ed. 451.

Point II.

The Act of Congress creating the plaintiff in error society
expressly provided that such corporation should not have

SEPP RSE ae,

SUPREME LODGE K. OF P. V. MEYER. 3

power to amend its constitution so as to conflict with the
laws of the United States or of any state.
28 U. S. Statute at Large, pp. 96 and 97.

Point III.

The laws of Nebraska require that every fraternal society
insuring the lives of its members shall file with the auditor
of public accounts a cepy of its constitution and by-laws,
duly certified to by the secretary or corresponding officer,
and before any amendment, change or alteration thereof shall
take effect or be in force a copy of such amendment, cheage
or alteration, duly certified to by its secretary or correspond-
ing officer shall be filed with the Auditor of Public Accounts
of the state.

Section 22, Chapter 47, Acts of Nebraska for year
1897.

Section T7927, Comp. St. Nebraska 1922.

Knights of Maccabees y. Nitsch, 69 Neb. 312, 95 N.
W. 626.

Hart v. Knights of Maccabees, 83 Neb. 423, 119 N,
W. 679.

Metzger v. Royal Neighbors, 86 Neb. 61, 124 N. W.
913.

Tomson V. lowa Traveling Men’s Association, 88 Neb.
399, 129 N. W. 529.

Point IV.

The state may impose on a foreign corporation, as a con-
dition of coming into and doing business within its. terri-
tory, any terms, conditions, and restrictions it may think
proper, not repugnant to fundamental laws.

United States Bank of Augusta y. Earle, 13 Peters

O19, 10 L. Ed. 274.

Lafayette Insurance Company ¥. French, 18 Howard

404, 15 L. Ed. 451.

Poul vy. Virginia, 8 Wallace 168, 19 Ed. 357.
Ducat vy. Chicago, 10 Wallace 410, 19 L. Ed. 972.

WERENT

SEK ecdrain (eck nre

See Matas te te

SeyePrEDS

_ SUPREME LODGE Kk. OF P. VY. MEYER. _

Doyle v. Continental Insurance Company, 94 UL S
535, 24 L. Ed. 148.

Prudential Insurance Company of America Vv. Cheek,
259 U.S. 530, 66 L. Ed. 1044.

Interstate Amusement Company Vv. Albert, 239 UL8.
560, 60 L. Ed. 439.

State Vv. cancion Company of North America, 7
Neb. 320, 99 N. W. 36.

Point V.

Under the laws of Nebraska a fraternal beneficiary society
insuring the lives of its members is required, among other
things, to have a representative form of government.

Section 1, Chapter 47, Acts of Nebraska for year
1897.
Section 6635, Cobbey’s Anno, St. Nebraska 1911.

Point VI.

Where, under the provisions of the constitution and by-
laws of a fraternal beneficiary association, the delegates to
the governing body thereof, regularly elected by the members
of said association, cannot of themselves, and without the
participation of members of committees appointed from men
bers outside of such delegates, legally and of right adopi, alter
or amend the edits and laws of such association and abso:
lutely control the government of the same, such governing
body is not a representative body, and an association so con
stituted and governed cannot be said to have a representative
form of government.

Briggs vy. Royal Highlands, 84 Neb. 834, 122 N. W. 6.
Johnson v. Bankers Union, 83 Neb, 48, 118 N. W.
1104.
Point VII.

The Supreme Court must accept the interpretation of the

terms of a state statute placed upon it by the highest court

of the state.
Thornton Y. Duffy, 254 U. 8. 361, 65 TL. ad. 30-4.

, SUPREME LODGE K. OF P. ¥. MEYER. 5

Ward & Gow v. Krinsky, 259 U. 8. 503, 66 L. Ed.
1033.
Quong Ham Wah Co. vy. Industrial Accident Com-

o~

mission, 255 U.S. 445, 65 L. Ed. 12a.

Point VUI.

The Holt case upon which plaintiff in error relies as res
adjudicata Was commenced January 25, 1911, under former
equity rule No. 38, which was as follows: “When the ques-
tion is one of Common or general interest to many persons
constituting a class so numerous as to make it impracticable
to bring them all before the court, one or more may sue
or defend for the whole. But in such cases the decree shall
te without prejudice to the rights and claims of the absent

.

jarties.” The deceased member whose certificate of insur-
ince is sought to be collected was not a party and the decree
was without prejudice to his rights, and neither he nor
lis beneficiary, the defenda

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