Garrett v. Garrett

This is a contest waged between the widow and minor son of Edward E. Garrett, deceased, each claiming certain money due as insurance upon his life, and which ■money the insurance company had paid into court to abide the result of the litigation.

The respondent William Edward Garrett, pursuant to notice thereof, presents a motion to dismiss the appeal. As grounds therefor the notice specifies the following: First, that the appellant has not perfected said appeal in the manner required by law and the rales of the above-entitled court; second, that appellant has not filed in the above-entitled court, within the time allowed by law or otherwise, or at all, the requisite papers on appeal from the judgment herein, from which said judgment said appellant has attempted to or has taken an appeal; third, that the pretended stipulation contained on page 82 of appellant’s transcript was never signed by nor agreed to by the attorneys for cross-defendant and respondent William Edward Garrett, or either of them; fourth, for other and further reasons apparent upon the appellant’s transcript of record.

Section 1010 of the Code of Civil Procedure provides that the notice of a motion must state the grounds upon which it will be made. Section 954 of the Code of Civil Procedure provides that, “If the appellant fails to furnish the requisite papers, the appeal may be dismissed.” Respondent in. his notice does not pretend to designate or point out what papers requisite to a consideration of the appeal are omitted from the record, and it is impossible to determine from the notice wherein appellant has failed to perfect her appeal, or wherein she has failed to file the requisite papers on appeal, or what further reasons apparent upon the record respondent refers to as grounds for the motion. The provision of the section last quoted is similar to that contained in section 556 of the Code of Civil Procedure, which provides that a writ of attach

Respondent insists that the notice of appeal was not properly served. As appears from the record, respondent’s attorney resided in San Francisco and appellant’s attorney in Los Angeles. The notice of appeal was served by mail; and while the transcript discloses the filing of the notice with the clerk, it does not show service thereof. An affidavit presented, however, covers this omission by showing proper service by mail. (Estate of Stratton, 112 Cal. 513 , [ 44 Pac. 1028 ]; Warren v. Hopkins, 110 Cal. 506 , [ 42 Pac. 986 ].) There is no merit

As appears from the findings made and undisputed facts alleged in the pleadings, the Bankers Life Company, a corporation having its principal place of business in Des Moines, Iowa, and created under the laws of that state as a life insurance company, did, in June, 1903, issue to Edward E. Garrett two certificates of membership in said Bankers Life Company, by each of which, upon the death of the assured, it agreed to pay to Emma L. Garrett, the then wife of said Edward E. Garrett and named in said certificates of membership as the beneficiary therein, the sum of two thousand dollars. Some time after the issuance of said certificates of membership, Edward E. Garrett and Emma L. Garrett, his wife, named as beneficiary therein, were divorced. Whereupon the insured, as he concededly had the right to do, changed the beneficiary named in said certificates, substituting for his divorced wife his son, William Edward Garrett, respondent herein. At a later date Edward E. Garrett married Iva L. Garrett, plaintiff herein, and thereafter, on March 10, 1914, he duly executed and indorsed upon each of said certificates of membership the following: “I, Edward E. Garrett, holder of the within certificates Nos. 130461-2, hereby revoke all directions by me heretofore made as to the disposition of the

In the absence of anything to the contrary shown, we must presume that the right of the Bankers Life Company to make by-laws is governed by the laws of Iowa, with which they must not be inconsistent. (Cal. Civ. Code, sec. 301.) The Iowa statute, the existence of which is found by the court, provides that the insured may, not “with the consent of the association,” as provided in the by-laws, but “at his pleasure,” change the beneficiary named in the certificates. To thus restrict the right and make it subject to the consent of the company, without which such change could not be made, would, in effect, nullify and destroy the statutory provision. As we construe the statute, the provision that a change may be made “at the pleasure” of the insured, “as may be provided for in the . . . by-laws,” refers to the mode or means adopted by the company for effecting the change, which in this case appears to be by an indorsement upon the certificates expressing the intention of the insured. The rules adopted therefor by the company must be reasonable and not restrictive of the right given by the statute to the holder of the certificates. That part of the by-law providing that a change in the beneficiary named in the certificate, “shall not be binding until the consent of the association shall be indorsed on said certificate,” being inconsistent with and restrictive of the right given by the general laws of Iowa, must be disregarded as of no force or effect. Conceding that the provision of the by-laws that “a copy of such indorsement, signed by the member and filed with the association,” was not, as found by the court, complied with, nevertheless the original so presented to the association was equally as effective for the purpose to be subserved, which was notice and data for its records, as the copy thereof could have been. Indeed, it appears that the company, on March 16th, in returning the certificates, stated, copies have been made for our records, ’ ’ thus waiving the requirement, as it might do. (Marsh v. American Legion of Honor, 149 Mass. 517 , [ 4 L. R A. 382 , 21 N. E. 1070 ]; St. Louis Police Relief Assn. v. Tierney, 116

Moreover, equity regards that as done which ought to have been done (1 Pomeroy’s Equity Jurisprudence, sec. 364), and the insured having the right at his pleasure to change the beneficiary named in the certificates, and having made the indorsement upon the certificates in the manner and form required by the association, and forwarded the same to the company, which, as found, received them on March 14th, the day before his death, he had done all in his power to change the beneficiary, and his death following such change, notice of which was brought home to the company prior to his death, was sufficient to and did constitute an effectual change in the beneficiary named. (Supreme Conclave Boyal Adelphia v. Cappella, 41 Fed. 1 ; John Hancock Mut. Life Ins. Co. v. White, 20 R. I. 457 , [ 40 Atl. 5 ] ; Luhrs v. Luhrs, 123 N. T. 367, [ 20 Am. St. Rep. 754 , 9 L. R. A. 534 , 25 N. E. 388 ].) In Heydorf v. Conrack, 7 Kan. App. 202 , [ 52 Pac. 700 ], it is said: “Where a holder of a certificate in a mutual benefit society desires to change the 'beneficiary therein, and does all that he is required to do by the by-laws of the society, and then dies before the change is completed, a court of equity will decree the payment of the money the same as if the desired change had been fully completed in the lifetime of the assured.” See, also, Hirschl v. Clark, 81 Iowa, 200 , [ 9 L. R. A. 841 , 47 N. W. 78 ], and Supreme Lodge v. Price, 27 Cal. App. 607 , [ 150 Pac. 803 ], to the effect that where the intended change is brought home to the association during the life of the insured, the beneficiary so designated by him is entitled to recover.

In our opinion, the findings clearly show that the insured in his lifetime changed the beneficiary named in the certificates, substituting for William Edward Garrett Ms wife, Iva L. Garrett, notice of which fact was brought to the notice of the company prior to Ms death, in a manner which substantially complied with all legal requirements; that his right to change the beneficiary was not subject to and did not depend upon the consent of the company; that if it did so depend, the company must be deemed to have assented thereto upon receipt of the certificates upon which such change was

As stated, the Bankers Life Company paid into court the fund which constituted the subject of the litigation. On December 12, 1915, the court rendered its decision and judgment in the matter, awarding the money involved to William Edward Garrett, and on the same day the court made an order staying execution for a period of ten days. Judgment was entered on December 15, 1915. On December 23, 1915, the following order was made by the court:

“It appearing that the above mentioned sum of $4,074 is now justly due and payable to said William Edward Garrett, I hereby order that it be paid to him by the Treasurer of Los Angeles County, California, and the County Auditor of said county is hereby ordered to allow this demand upon the Treasurer of said county for said sum of $4,074, in favor of said William Edward Garrett in payment thereof, less any moneys paid or due as city and county taxes on said fund. Dated this 23rd day of December, 1915.

“Louis W. Myers, Judge.”

Upon this order, made without the knowledge of appellant or her attorney, and other steps, duly taken as required in withdrawing money from the county treasury in such cases, the money was paid over to the guardian of said minor. On December 24, 1915, plaintiff and appellant served her notice of appeal herein, followed in due time 'by the filing of the requisite undertaking. Thereafter, upon the application of the plaintiff to the court, it made an order vacating and setting aside its former order upon the ground that it had been made through inadvertence. No steps, however, were taken by appellant in the trial court to have said fund restored to the county treasury. But she has presented to this court a motion for an order directing the minor, William Edward Garrett, and his guardian, and also Charles S. Peery and W. E. Lady, both individually and as attorneys for William Edward Garrett, to restore and repay into the county treasury of Los Angeles County the sum of $4,074, being the amount of money deposited with the clerk of the superior court by the Bankers Life Company to abide the result of this action and so withdrawn pursuant to the order of court above set out;

The contention of appellant is that the order staying execution did not begin to run until the entry of judgment on December 15th. This for the reason that prior to such time no execution could have issued. Such, in our opinion, is not the legal effect of the order. As we construe it, the ten-day order staying execution commenced to run from its date, to wit, December 12th, and expired on December 22d. On December 23d, when the order for the withdrawal of the funds and payment thereof to William Edward Garrett was made, no appeal had 'been taken and the time of the stay of execution had expired; hence the court had authority to make the order upon which the money was withdrawn and applied in payment of an existing judgment as to which at the time no appeal had been perfected. In our opinion, the fact that the court, after the money had been paid over in satisfaction of the judgment, vacated and set aside the order upon which it was paid could not vest this court with jurisdiction to order the restoration of the fund. The rule in such cases, as we understand it, is “that a party obtaining through a judgment before reversal any advantage or benefit must restore the amount he got to the other party after the reversal.” (Reynolds v. Harris, 14 Cal. 680 , [ 76 Am. Dec. 459 ]; sec. 957, Code Civ. Proc.; Bank of United States v. Bank of Washington, 6 Pet. 19 , [ 8 L. Ed. 299 ]. See, also, Patterson v. Keeney, 165 Cal. 465 , [Ann. Cas. 1914D, 232, 132 Pac. 1043 ].) But conceding without deciding that the trial court could have ordered the fund restored, no such order was made.

Our conclusion is that the respondent’s motion to dismiss the appeal should be denied; that appellant’s motion to have the fund restored and to cite the parties to show cause why they should not 'be adjudged guilty of contempt for applying for the order pursuant to which the fund was paid should likewise be denied; that the judgment appealed from should be reversed and the trial court instructed to enter judgment upon the findings for the plaintiff and cross-defendant Iva L. Garrett; all of which is so ordered.

Conrey, P. J., and James, J., concurred.