White v. Bellefontaine Lodge, Independent Order of Odd Fellows

Thompson, J., delivered the opinion of the court. This action is brought by the widow of a deceased member of the defendant lodge of the Independent. Order of Odd Fellows to recover the sum of forty dollars, known in the constitution of subordinate lodges and in the by-laws of defendant lodge as a “funeral benefit,” and the further sum of two dollars per week for a period of forty-two weeks elapsing since the death of her husband, as a “widow’s benefit” under such constitution and by-laws. I. The petition alleges that the defendant is a benevolent corporation of the state of Missouri. The defendant appeared by the name by which it wasimpleaded in the petition and answered by a general denial. ' Separate from the answer and not referred to>therein, is an affidavit to the effect that the defendant, is not a corporation as alleged in the petition. This affidavit seems to satisfy the terms of the act of March 15, 1883, which provides that the fact of the existence of a corporation must be put in issue by an affidavit filed with the pleadings.' This affidavit cast upon the plaintiff the burden of proving that the defendant was a corporation ; but the plaintiff introduced no evidence-tending to show that such was the fact, and the defendant, on the contrary, introduced evidence tending to show that it had never been incorporated. As the suit [684] lias not been properly brought, we shall affirm the judgment without looking into the merits, with the additional observation that if, after the decision and opinion of the circuit judge in this case, the plaintiff shall be advised that she has a cause of action, nothing herein decided will prevent her from bringing an action against the individuals who compose the defendant lodge. Judgment affirmed. All the judges concur.