Flicek v. High Court Catholic Order of Foresters , 90 Ill. App. 344 ( 1900 )

Mr. Justice Windes

delivered the opinion of the court.

Several contentions are urged upon the court by counsel for plaintiff in error, which, it is claimed, are cause for reversal of the judgment, but in view of the conclusion we have reached, it seems necessary to consider only one question, viz., whether there was a forfeiture by Mathias Flicek’s failure to pay assessment Ho. 152 on or before February 15, 1898, which is binding upo'n his beneficiary, the plaintiff in error. The evidence shows that if there was no such forfeiture, then the plaintiff is entitled to recover the amount of the certificate, less any unpaid assessments up to April 29, 1899, and interest on the balance from August 23,1899.

It is important, in the consideration of this question, to note the relations under the constitutions and by-laws governing the order, of the member, the subordinate court and the high court. In the matter of payment of endowment assessments, with which we are here concerned, the high court deals with the member through the subordinate court only, except in case of a suspension of the subordinate court for failure to pay to the high court such assessments, with which we are not here concerned, as there was no suspension of the subordinate court. The member, in the payment of his assessments, deals only with the subordinate court, paj^s his assessments to that court, and they are forwarded, when called by the high court, to its proper officer. In all cases when an assessment is called by the high court, it must be paid by the subordinate court at a date prior to the assessment which the member is called upon to pay by the same notice given by the high court through the subordinate court. In this case, when assessment No. 152 was called to the high treasury of the high court by notice of January 5, 1898, the time for its payment by the subordinate to the high court expired January 20, 1898, while the time for the member to pay to his subordinate court expired February 15,1898. This assessment, amounting to seventy-two cents, was paid by the subordinate court to the high court within the time required by the by-laws; but, as we have seen, the assured failed to pay the assessment to his subordinate court, and, upon request by him made, at a regular meeting of the subordinate court, which occurred six days before his time for payment expired, he procured an extension of time from the subordinate court until February 23, 1898, when he, having still failed to pay the assessment, was by the action of the subordinate court suspended from the order because of his non-payment of the assessment, and the high secretary of the high court duly notified of such suspension. The claim of defendant in error is that, under section 1 of article XIII of the subordinate court constitution, above quoted in the statement, Flicek, by the non-payment of his assessment when it became due, according to the terms of the notice, was ipso facto suspended, and there was no necessity of any action being taken by the subordinate court in that regard. We think this contention is not tenable. As will be seen from the by-laws quoted in the statement, the subordinate court, in the case of the failure of a member to pay his endowment assessment, might appropriate out of the court fund a sum sufficient to pay it,, and the member should be charged in his court fund account the sum so appropriated; also the subordinate court has the power to set apart a sufficient sum of money to pay the dues and assessments of a sick member for the period of one year. These provisions, in our opinion, clearly establish the right of the subordinate court to waive the provisions of the by-law above referred to, by the terms of which it is said that the member failing to pay his assessments when due should by that fact stand suspended from the order.

Forfeitures are not favored in the law, and before they will be enforced by the courts they must be clearly and strictly established. Palmer v. Ford, 70 Ill. 369; Conductors’, etc., Assn. v. Tucker, 157 Ill. 200; Metropolitan, etc., Assn. v. Windover, 137 Ill. 417-32; High Court, etc., v. Schweitzer, 171 Ill. 325; Order of Friends v. Austerlitz, 75 Ill. App. 87; King v. Radeke, 175 Ill. 72-7.

The action of the subordinate court, as we have seen, in extending the time to Flicek for him to pay his assessment, was authorized by the by-laws and waived any right of forfeiture thereunder by reason of his failure to pay, and being once waived could not be revived or availed of for the same cause, viz., the payment of assessment No. 152. It is not claimed that his rights were forfeited by reason of his failure to pay any other assessment, or for any other reason, and early in March, 1898, presumably at the first meeting of the subordinate court iu that month, the president of the court refused to receive any delinquent dues or assessments from Flicelc when the same were offered to be paid by Mrs. Flicelc. He could do no more, and the actions of St. Mathias court, on February 23, 1898, in attempting to suspend him, and afterward in attempting to expel him, were of no avail as against his beneficiary. Continental, etc., Assn. v. Rogers, 119 Ill. 487; Met., etc., Assn. v. Windover, 137 Ill. 432; High Court v. Schweitzer, 171 Ill. 325.

The cases cited by counsel for defendant in error, which be claims sustain his contention that a subordinate lodge and its officers have no authority to waive any laws of the order relating to the substance of the contract between the member and the order, do not, in our opinion, sustain the contention in so far as concerns the action of the subordinate lodge or society. They relate to acts of officers or representatives of the subordinate society which they claimed to establish a waiver, and not to the acts of the society itself, which we have seen had, by the constitution and the by-laws of the order, the power to extend the time of payment of assessments to the member.

The judgment is reversed and the cause remanded.