Continental Life Insurance v. Kessler , 84 Ind. 310 ( 1882 )

Woods, J.

The appeal is from a judgment upon a policy of insurance upon the life of the appellee’s wife, a copy of which policy was filed with the complaint as the basis of the action.

The policy contains the following clause:

“Provided always, and it is hereby declared to be the true intent and meaning of this policy, and the same is granted by the company and accepted by the assured,, upon the following express conditions and agreements: * * *

“ Second. That the answers, statements and declarations contained in or endorsed upon the application for this insurance, which application is hereby referred to and made a part of this contract, as is fully herein recited, and upon the faith of which this agreement is made, are warranted by the assured to be true in all respects, and that if this policy has been obtained by or through any fraud, misrepresentation or concealment, it shall be absolutely null and void.”

The complaint contains an allegation of full performance of all the conditions of the policy, both by the appellee and by his wife, upon .whose life the policy was issued.

The appellant demurred to the complaint for want of facts stated sufficient to constitute a cause of action, and now insists that the demurrer should have been sustained because a copy of the application for the insurance was not filed with the pleading.

The question thus raised has already been decided adversely to the appellant, and we are not inclined to reconsider the ruling. Mutual Benefit Life Ins. Co. v. Cannon, 48 Ind. 264; Commonwealth Ins. Co. v. Monninger, 18 Ind. 352.

It is alleged that the court erred in refusing a continuance of the cause; but the ruling was not made a cause for a new ti’ial, and is, therefore, not available on appeal. Hughes v. Ainslee, 28 Ind. 346; Carr v. Eaton, 42 Ind. 385.

The remaining question is whether the court erred in refusing to grant the petition of the appellant for the removal of the cause to the Federal Court.

The record shows that the action was commenced for the October term, 1880, of the court, at which term the appellant, in obedience to process duly served, appeared and demurred to the complaint; whereupon the cause was continued. At the ensuing January term, 1881, the demurrer was overruled and the appellant ruled to answer. Afterwards, at the same term, the appellant filed an affidavit and moved for a continuance, which, being denied, the petition and bond for removal of the cause was presented, the removal being asked on the ground that the appellant was a non-resident of the State, the appellee being a resident. Objection was made to the removal on the grounds that the bond had been materially altered since it was signed by some of the sureties, and that the sureties were not responsible. The court, upon a hearing of evidence on the subject, found that the bond had been materially altered, and that the evidence was not satisfactory of the sufficiency of the sureties on the bond, and overruled the petition.

The further point is now made by the appellee that the application for the removal came too late, it being insisted that the petition should have been presented at the October term,, 1880, when, by law, the cause might first have been tried.

In the case of Sharp v. Gutcher, 74 Ind. 357, may be found a reference to the successive enactments and compilations of the laws passed by Congress on this subject. In that case it was said: “When the cause for removal is on account of citizenship alone, the time for filing the petition is controlled by the act of 1875. When the cause is for citizenship and prejudice, or local influence, the time for filing the petition is controlled by the third subdivision of the said 639th section of the second * * revision of 1878,” and the application in that case, being on account of prejudice, was held to be in time,, because filed before the commencement of the trial.

The application in this case is governed by the provision in the act of 1875 which authorizes the party to “ make and file a petition in such suit in such State court before or at the term at which said cause could be first tried and before the trial thereof.”

This, according to the plain purport of the words, has been judicially determined to mean “the term at which, uiider the legislation of the State, and the rules of practice pursuant thereto, the cause is first triable, i. e., subject to be tried on its merits, not necessarily the term when, owing to press of business or arrearages, it may be first reached in its order for actual trial;” .or, as stated by Chief Justice Waite, in Babbitt v. Clark, 103 U. S. 606, “ the election must be made at the first term in which the cause is in law triable.” Murray v. Holden, 1 McCrary, 341; McLean v. St. Paul, etc., R. W. Co., 17 Blatchf. 363; Dillon Removal of Causes (3d ed.), p. 78, section 64.

Judgment affirmed, with costs.