Wirtele v. Grand Lodge, Ancient Order of United Workmen , 111 Neb. 302 ( 1923 )

Dean, J.

' Mrs. Christina Wirtele began this action against the Ancient Order, of United Workmen, a fraternal beneficiary society, to recover $2,000 as the beneficiary named in a certificate of insurance issued by defendant to Christian Wirtele, her late husband. A jury was waived -and the ease was tried on an agreed statement of facts. Plaintiff recovered judgment for $2,162.52. Defendant appealed.

Since the appeal was perfected Mrs. Christina Wirtele died at Rotenburg, Germany, on or about November 2, 1920. Thereupon administration proceedings upon her estate were instituted in the county court of Otoe county, and on motion the action was revived here in the administrator’s name. The defense urged is that the action is barred by the statute of limitations.

The material facts which appear in the stipulation on which the case was tried follow: Mr. Wirtele became a member of the defendant society January 28, 1896, at Nebraska City, and so remained, in good and regular standing, until his death. The Wirteles were, and always remained, citizens of the United States, but in June, 1914, they took up their residence at Stuttgart, in the kingdom of Wurtemberg, Germany, where Mr. Wirtele died April 28, 1915. About May 1, 1915, the defendant society received notice of the death of the insured but took no action in respect of plaintiff’s claim. The required proofs of death were duly mailed to defendant, by plaintiff, from Germany, August' 2, 1916, but were lost owing, apparently, to the hazardous war conditions then prevailing on land and sea. The loss was> not discovered by plaintiff until the United States became engaged, with the allies, in the war against Germany. At that time an exchange of mail matter and intercourse generally between the two countries was of course practically suspended. The proofs, however, were finally furnished to defendant about July 31, 1920', which was about five years and three months after the death of the insured.. Hence, the defendant pleads the statute in bar of the claim. It was further stipulated and agreed:

“That on April 6, 1917, the United States of America declared war against the German Empire, and that on the 6th day of October, 1917, the congress of the.United States of America, wffh the approval of the president, enacted what is known as the ‘Tracting with the Enemy Act,’ whereby the plaintiff became an alien enemy. It is admitted that, immediately upon the passage and approval of said act, there was appointed an official known as an ‘alien custodian,’ with such powers as the act conferred upon him.”

The “Trading with the Enemy Act” provides that the word “enemy” as used therein shall be deemed to mean “any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war.” 40 U. S. St. at Large, ch. 106, sec. 1, p. 411.

Under the act Mrs. Wirtele, though at all times a citizen of the United States, by an act of law, came within the class denominated “alien enemy,” and could not therefore resort to the courts of this country as plaintiff. We so held in a recent case. In re Estate of Thiede, 102 Neb. 747. See McVeigh v. United States, 11 Wall. (U. S.) 259. The McVeigh case was cited with approval in Porter v. Freudenberg, Ann. Cas. 1917C, 215 (1 K. B. Div. 1915 (Eng.) 857). See Taylor v. Albion Lumber Co., 176 Cal. 347, L. R. A. 1918 B, 185, and note.

The chronology in respect of the facts involved here may be briefly recapitulated: April 28, 1915, the insured died in Germany. A state of war between the United States and Germany was declared April 6, 1917. Active hostilities continued until November 11, 1918. The proofs of death were furnished to defendant on or about July 31, 1920. The petition was filed in the district court March 16, 1921; and the case was tried in that court September 28, 1921. It follows that, pursuant to the “Trading with the Enemy Act,” and the decisions thereunder, the. statute of limitations did not bar the action. —

Defendant argues that plaintiff might have begun suit while the war was in progress if she had applied to the alien property custodian who was appointed under the provisions of the act in question. We are u'nablé to find anything in the act which would have émpowered that officer to begin an action for plaintiff in this class of cases. In discussing the act and the power of the alien property custodian thereunder, it has been said: “This power is wholly statutory, and if it exists it must be found within the enumeration of his powers set forth in the creative trading with the enemy act.” Waldes v. Basch, 179 N. Y. Supp. 713.

There being no impelling lawful reasons to the contrary, the defendant society should make its fraternal promise good to the beneficiary, or to her representatives, in return for the monthly dues which Christian Wirtele paid into its treasury for almost a score of years.

Another feature presented by the record must be noticed. The judgment is dated as of September 28, 1921. December 20, following, plaintiff filed a motion to tax an attorney fee, as part of the costs, under chapter' 103, Laws 1919 (Comp. St. 1922, sec. 7811). December 27, 1921, the appeal was perfected and the record was filed in this court. January 9, 1922, at an adjourned sitting of the same term of the district court at which the case was tried, plaintiff’s motion was sustained ■ and $250 was taxed as costs. It is conceded that the fee is reasonable, but the defendant now argues that it should have been taxed immediately at the close of the trial, or not at all, and that, failing in this, the court erred in the premises. ’ That part of the act which reads that such attorney fee shall be so taxed, “upon rendering judgment,” is stressed by defendant. Defendant’s argument that the tax must be imposed at the immediate sitting at which the case is tried cannot be upheld. Barkley v. Pool, 105 Neb. 203. In Hendrix v. Rieman, 6 Neb. 516, it was held that an attorney’s fee taxed in a suit is no part of the judgment, but is taxed as costs, and is subject to exceptions and review in like manner as the taxation of other costs may be. The objection is technical. The court did not err in taxing the fee at an adjourned sitting of the same term at which the case was tried.

Certain correspondence between the grand recorder of the defendant society and a representative of Mrs. Wirtele appears in the record. Plaintiff earnestly' contends that the letters written by the grand recorder constitute a waiver of the statute of limitations, but we do not find it necessary to base our decision upon that ground and therefore leave that question undecided.

The judgment is

' Affirmed.