
    Myers et al. v. Jenkins, Admr.
    
      Independent Order of Odd ffellows — Liability of lodge for sick benefits under laws of order — Member claiming benefit must seek remedy first in tribunals of order — Right of appeal— Nature of final determination of order — If order refuses or neglects proper rights, member may sue in civil courts.
    
    1. A bill of exceptions is included in what are called original .papers in section 6716 Revised Statutes.
    2. Where the journal shows that a demurrer was argued by counsel, heard and decided by the court, and such demurrer bears the file mark of the clerk, it will be held to have been filed, even though the clerk has failed to enter such filing upon the appearance docket.
    3. The members of a lodge of the Independent Order of Odd Fellows are not liable to another member of the same lodge for sick benefits, unless there is some law of the order expressly making them so liable. The obligation to pay sick benefits, as the laws of the order in this state stood in the year 1890, rested alone upon the lodge, and not upon the members or officers thereof.
    4. When a member of such order claims to be entitled to sick benefits, he must seek his remedy, in the first instance, in the lodge and the tribunals of the order, and the determination of the matter by such lodge and tribunals in substantial accordance with the law's of the order, will be final and conclusive of the right to receive such benefits.
    5. If the lodge refuses or neglects upon proper demand to have the right to such benefits determined in substantial accordance with the laws of the order, or refuses to pay such benefits after the same have been awarded to such member, then such member may sue in the civil courts for the recovery of such benefits.
    6. Where, in a proceeding in a lodge in substantial accordance with its laws, it is determined that such member has no right to sick benefits, and the member appeals to the next higher tribunal in the order, and the lodge furnishes him a ' proper transcript of the proceedings, and he fails to secure a hearing of his appeal by reason of his own negligence, or by reason of the negligence of such higher tribunal or some officer thereof, such failure to secure a hearing on his appeal will not entitle him to sue the lodge for such benefits in the civil courts.
    
      7. A contract in advance to renounce and waive one’s rigM to appeal to the courts for the redress of wrongs, is void, and of no effect.
    (Decided June 19, 1900.)
    Error to- the Circuit Court of Licking county.
    On December 30, .1892, Albert B. Lucas, then in full life but since deceased, began his action against persons holding the offices of Noble Grand, Vice Grand, Secretary, Treasurer and Trustees of Olive Branch Lodge, No. 34, Independent Order of Odd Fellows, individually and as such officers. Afterward an amended petition was filed, and said Olive Branch Lodge was made a party defendant.
    The action was brought for the recovery of sick benefits at $4.50 per week from October 1, 1890, to the date of the commencement of the action, the plaintiff claiming that he was a member in good standing and disabled by sickness not caused by improper conduct on his part, during that period.
    The amended petition states that the said defendants and the other members of said lodge are associated together for the purpose following:
    “The object of said lodge as stated in their laws is to foster universal brotherhood among men, to administer relief and sympathy to its members and to assist them in distress, help them in want and counsel them in difficulty; that the questions involved in this case are of a common and general interest of many persons; that the real parties in interest other than those mentioned as defendants are very numerous, consisting of about 200 members, and it is impracticable to bring them all before the court; the said defendants ought, and the court by its order ought to require them to defend for the benefit of all”
    
      “That among the laws which govern said order and which is binding upon the said branch lodge is one which provides that each beneficial member in good standing, who shall be disabled by sickness or injury to his person, which prevents him from following some legitimate business, provided said sickness or injury shall not have been occasioned by his own improper conduct, and who shall have been a member of said lodge six months, shall be entitled to receive as benefits not less than $1 per week and not more than a sum equal to three-fourths of the ame unt charged by his lodge for annual dues during the time of said sickness or disability, which amount shall be drawn and paid weekly to said brother.”
    He avers in his amended petition that he became disabled by sickness not caused by any improper conduct on his part, so as to be unable to follow any legitimate business, that he was then in good standing and had been a member for more than six months, and still remained so disabled, of all which said lodge had due. notice.
    “That since said time of March, 1S90, said plaintiff has been entitled under the laws of said branch of said order to receive the sum of $4.50 for each and every week during said time, except that said branch has the right, during such disability to deduct the annual dues of such member as they become payable from the weekly benefit so due.
    “That said lodge has paid to plaintiff his said benefits, to-wit: The sum of $4.50 per week so due as aforesaid from about said 30th day of March, 1890, until the last Wednesday in September, 1890; that no other or further payment has been made upon said benefits and tha.t there is due to said plaintiff from the members of said lodge by reason of the premises, up to and including the 30th day of December, 1891, the sum of $297.00 with interest on each $4.50 thereof from October 1, 1890, and each week to this date and thereafter, the payment of which sums having been many times demanded by plaintiff of the defendants, but said payment has been refused, and said benefits during the pendency of this action will continue to accrue and be due and payable on Wednesday of each week at the rate of $4.50 weekly.
    “Wherefore, the plaintiff asks that the defendants herein named or anyone of them, who have knowledge thereof, be required to answer the interrogatories hereto attached and herewith filed, so that plaintiff may ascertain who are the members of said association; and when he so ascertains their names he may be permitted to so amend this his petition as to make them parties to this action, and that he may have judgment against sa.id association as hereinafter prayed for. /
    “Wherefore, plaintiff demands judgment against the said defendants and members composing said branch, lodge and against said association in said sum of $297.00 with interest on each $4.50 from October 1, 1890, and on said sum from each week thereafter to date, and also asks judgment for such sum as said accruing benefits still amount to during this, suit with like interest, and he asks for all proper relief.”
    To this amended petition each defendant separately demurred, upon the ground that the court had no jurisdiction of the person or cause of action, and that the petition did not state facts' sufficient to constitute a cause of action against said defendants or either of them.
    
      The court overruled the demurrer to the amended petition as to all and each of the defendants, to which defendants excepted. Thereupon the lodge and the' other defendants answered, both in their official and individual capacity. Tire answer admits that said individuals hold the offices as averred in the petition, that said lodge is in active operation under and in accordance with the rules, laws and constitution of the Independent Order of Odd Fellows, known, as the Grand Lodge of Ohio, and the Sovereign Grand Lodge from which said Olive Branch Lodge derives-its authority and principles of government; that said lodge was created for the purposes among others as-stated in said amended petition; that the plaintiff became a member of said lodge in the year 1885; that, said lodge has paid benefits to said plaintiff, and denies that plaintiff has complied with the laws, rules- and regulations of the lodge, and denies that he was-still a member of said lodge .in good standing Avhen the action was commenced.
    The answer denies the jurisdiction of the court and avers that said lodge is governed and controlled by the Grand Lodge of Ohio, and that the' Grand Lodge is governed and controlled by the Sovereign Grand Lodge, and annexes a copy of the laws governing the Grand Lodge of Ohio and said Olive Branch Lodge, and pleads a copy of the application for membership of said plaintiff in said lodge, aa herein he obligates himself to seek his “remedy for' all rights on account of said membership or connection therewith in the tribunals of the order only, Avithout resorting for their enforcement in any court or for any purpose to the civil courts.” That Avhen he became a member of the lodge he signed his name voluntarily to the constitution, and thereby became bound by its laws, and the sections of the laws as to such benefits are specially pleaded, and it is averred that he was expelled from the lodge for cause, August 4, 1891.
    It is further averred that said lodge refused to pay him further benefits after the last week in September, 1890, that the matter Avas referred to a committee of three under the laws of the lodge, he choosing one, the lodge one and these two a third; that the committee examined the matter after- notice to him, and unanimously reported that he was not entitled to further benefits; that the report was received and adopted by the lodge and spread upon its record; that plaintiff had the right under the laAvs of the order to take his claim for sick benefits by appeal or proceedings in error to what is known as the Grand Committee, thence to the Grand Lodge of Ohio, and thence to the Sovereign Grand Lodge, but that he failed to perfect such appeal or proceedings in error, and thereby became conclusively bound by the said determination of said lodge as to the sick benefits so claimed by him and sued for in this case.
    The reply admits the laAvs of the order as attached to the answer; that plaintiff signed the constitution, that he made application for sick benefits, and selected one member of the committee and denies the other allegations of the ansAver. He avers that the lodge arbitrarily refused to pay his sick benefits, and refused to investigate his claim for the same, and refused to permit the committeemen selected by him to serve or act in his behalf, and that he duly appealed from the decision of the lodge to the District Grand Committee, but that said committee and the District Deputy Grand. Master who has charge of the committee, refused to entertain his appeal or to hear the same; and that plaintiff was in consequence wholly without remedy, and he avers that the defendants are thereby estopped from claiming that he has no right to prosecute his action at law for the recovery of said sick benefits. To this reply there was a demurrer, which was overruled and exception noted.
    Upon the trial he claimed that he had obtained a transcript of the proceedings of the lodge as to his benefits, from the Secretary, and sent the same by letter to one J. E. Dow, who was the District Deputy Grand Master, and who had. removed to Findlay, Ohio. To prove that he had filed the transcript with ike District Deputy Grand Master, he offered in evidence the following letter which he said he had received by mail:
    “Findlay, O., April 2, 1891.
    “A. B. Lucas, Newark,
    “Dr. Sir & Bro. Yours to hand. I do not know the exact ‘date you sent me the papers but think it must have been about 1 to 10th of December. I know I forwarded them to NeAvark within a feAV days of the time I received them.
    “J. E. Doav,
    “222 Hardin Street.”
    The defendants objected to this letter being received in evidence, but the objection Avas overruled and exceptions noted.
    Plaintiff also testified that he had written a letter to the Grand Master of the Grand Lodge of Ohio at Toledo, and that he had received an answer and took it to the lodge, and that the Secretary read it to the lodge, but that he could not now find it after diligent search, and the Secretary could not find it. He was then permitted over the objection and exception of defendants to testify that in that letter the Grand’ Master wrote to him that he had instructed the Deputy Grand Master, Jones, to give him a legal hearing. It was also in testimony that when this Deputy Grand Master Jones was applied to by plaintiff’s-counsel to call the Grand Committee together and hear the appeal he replied that there was nothing to-hear. Mr. Jones testified that no transcript of the-proceedings as to plaintiff’s claim for sick benefits, ever came into his possession. The laws of the order-provide that an appeal shall be perfected by the filing of a transcript with the Deputy Grand Master,, and that, the trial on appeal shall be had within six months thereafter. Whether plaintiff’s demand for a trial was made before or after the expiration of such six months does not clearly appear.
    Plaintiff claimed that he perfected his appeal and that the District Deputy Grand Master arbitrarily refused to give him a hearing before the Grand Committee. The defendants deny this and claim that, if the District Deputy Grand Master refused to give a hearing, that the plaintiff had the means under the-laws of the order by application to the Grand Master- or by application to the Grand Lodge in the form of a grievance to compel such hearing.
    The court charged in effect that the plaintiff must, seek his remedy in the tribunals of the order, and that, their determination would be conclusive upon both parties, but that if the order refused or neglected at any stage to give him a hearing before the proper-tribunal, he might then abandon -the tribunals of the order, and seek his remedy in a court of justice. To this there was an exception.
    The jury returned a verdict for $392.58 in favor of the plaintiff and against all of the defendants. A motion was made for a new trial, which was overruled and exceptions taken, and judgment was then entered upon the verdict. The circuit court affirmed the judgment. Thereupon the plaintiffs in error filed their petition in this court seeking to reverse the judgments of the courts below.
    /§. L. James and /S', M. Hunter, for plaintiffs in error.
    We contend that the law is well settled that when an individual voluntarily joins an organization or friendly society, governed by its own constitution and by-laws, that he thereby contracts to be bound by that constitution and those by-laws, and if that constitution and those by-laws provide a means by which controversies between him and the lodge may be heard and decided, then he is bound to get his remedy in the manner proscribed therein.
    It is shown by the record, that the constitution and by-laws of the Olive Branch Lodge, provide expressly that in all controversies, between a member and the lodge, all questions shall be decided and settled finally in the lodge itself, with such provisions for review on appeal in the appellant courts of the order itself. And that in no event shall a member who feels himself aggrieved by any decision of the court of the lodge, appeal to the civil courts of the state.
    We contend that in the face of that provision this controversy must be settled and disposed of finally in the courts of the order, and Lucas by his own voluntary act in agreeing to be bound by the by-laws, has absolutely barred himself from appealing to the civil court.
    
      State ex rel. v. Cincinnati Chamber of Commerce, 4 N. P., 244, 6 Dec. 363; Am. & Eng. Enc. of Law (2 Ed.), 1071; Karcher v. Supreme Lodge Knights of Honor, 137 Mass., 368; Schryver v. Columbia Lodge, No. 32 I. O. O. F., 3 C. C. 122, 2 Circ. Dec. 238.
    - The latter is a case which is somewhat similar to the case at bar. It is an Ohio case. It is a case for sick benefits, and it is a case against the lodge of Odd Fellows. And the circuit court holds that he must, seek his remedy in the courts of the order, and can seek it nowhere else. Keefe v. Woman’s Catholic O. of F., 163 Ills., 78; Fee v. Big Sand Iron Co., 13 Ohio St., 563.
    Courts of conciliation are recognized by the constitution and statutes of Ohio. B. & O. R. R. Co. v. Stankard, 56 Ohio St., 221: The answers, filed in this case, was by the lodge, its officers and these members — and demurrers were filed to the amended petition and reply — these demurrers were overruled and exceptions taken. Now one word at this point: Could a judgment by any sort of proceeding be legally rendered against these private persons, jointly with Olivé Branch Lodge, or otherwise? If Lucas had any sort of a claim in this case it was against Olive Branch Lodge with whom he contracted, and no one else.
    The members of Olive Branch Lodge and fraternal organizations generally, are not partners or liable for any debt of such organization, unless by some express act of such members. If this proposition is correct, then this judgment a,gainst Jones, Carlisle, Crisman, Swisher and others is erroneous.
    No such facts are plead by plaintiff as entitled him to recover either against Olive Branch Lodge or these members jointly or severally — certainly no joint judgment is proper even if Lucas is entitled to recover. Devoss et al., v. Gray et al., 22 Ohio St., 159; Bacon on M. B. Societies, 454; 98 Ind., 149; 53 Ind., 380; 30 N. J., 313; 76 Ind., 191.
    The issues briefly stated, make the question whether Lucas, who was bound by the laws of the order, by becoming a member, as well as entitled to sick benefits under certain conditions, can resort to the civil courts for redress of his grievances, instead of being compelled to resort to the courts within the order.
    If he is compelled to resort to the tribunals within the order, to-wit: The subordinate and superior branches, and their determination is final, then Lucas, had no legal standing in the civil courts, and had no cláim of any kind against this lodge. Bear in mind all the time that the proof does not show that Jones was derelict in his duty — yet if he was — then Lucas had his remedy, which he did not avail himself of; but he acted just as if he had brought a suit in one court and had a judgment against him, then drop that, court and begin a new case in another
    
      Pape v. Castle Excelsior, Knights of the Golden Rule, which is squarely in point; 10 Cincinnati L. B., pp. 2, 3 and 4.
    Now, there is no claim made that Lucas ever attempted to exhaust his remedies within the order. This he must do. Forman v. Howard Beneficial Society, 4 Bar. 519; Black and White Smith Society v. Van Dyke, 2 Wharton, 309.
    Lucas, bound by the laws of the order which is a contract, and we present this theory, that if Lucas is entitled to recover at all this right rests upon a contract right and not a legal or statutory right; 92 Penn. Stat., 510; 111 Ind., 121; Anacosta Trite, No. 12, Red Men v. Marbank, 13 Maryland, 91; Daland v. Court of Good Samaritans, 128 Mass., 437; German 
      
      Reformed Church v. Commonwealth, 3 Bar., 282; 38 N. Y., S. C. How., 49; 52 Pa. S., 125; 57 Maryland, 98; Hershell on laws of Fraternities, 49; Alberry v. Brown, 51 Howard, 92.
    When Lucas became a member he Avaived all right to sue in the civil courts, and obligated himself to be bound by his contract, to not sue in the civil courts. 4 App. Pr. N. 8, 162 and 202, Grand Lodge Free Masons, 41 Mich., 208; Poulson v. Odd Fellows, 8 Mo. Appeals, 148; as to errors and irregularities; Gregg v. Mass. Medical Society, 111 Mass., 185; also Commonwealth v. Pike Beneficial Society, 8 W. and 8., 250; Robinson v. Yates City Lodge, 86 Ills., 598.
    A member of a beneficial society must resort for correction of an alleged Avrong to the- tribunals of his order; and the judgments of such tribunals are final and conclusive. Sperry’s Appeals, 116 Pa. St., 397; McAllees v. Supreme Sitting of Iron Hall, 13 At. Rep., 755; Cotton Exchange v. State, 54 Ga., 658; Samsell v. Esher, 26 Law Bul., 156, 11 Dec. Re., 351; Moore v. Robison, 6th Ohio St., 302; Weyer v. Zane, 3 Ohio, 305; Lessee of Adams v. Jeffries, 12 Ohio, 272; Douglass v. Massie, 16 Ohio, 272; Aubrey v. Almy, 4 Ohio St., 525.
    A judgment of a court having jurisdiction is forever final and conclusive, notwithstanding the record abound with irregularities, which would authorize a reversal by a proceeding for that purpose. 1 Mass., 332; Hughes v. Blace, 1 Mass. C. C., 515; Thornton v. Campbell, 6 Fla., 546; Beal v. Pierce, 12 Md., 550; 14 Mich., 348; Welsh v. Childs, 17 Ohio St., 319; Billings v. Rossel, 23 Ohio St., 186; Wickersham v. Weldon, 33 Mo., 561. Schryver v. The Lodge, 3 C. C., 422, 2 Circ. Dec., 238, is directly in point. 
      Steuve v. Grand Lodge, 5 C. C., 471; 3 Circ. Dec., 231; Rord v. Benefit Society, 31 Fed. Rep., 63.
    As to question of Property Rights, we wish to say that the organization and purpose of these institutions do not contemplate such a thing:
    “Membership in such corporations is like life, as the Apostle described it. “For we brought nothing unto this AvorltJ, and it is certain we can carry nothing out. And haAo'ng food and raiment, let us be therewith content.” — 1st Timothy, 6th and 7th verses.
    The interest of members is several; there is no community of interest. 22 Am. and Eng. Enc. of Law, 804; Milback on Mutual Ben. Societies, sec. 100; Ash v. Groine, 97 Penn. St., 493; State v. Odd Fellows, 8 Mo. Appeals, 148; Eershiser v. Williams, 4 Ohio Dec., 17, the Masonic case decided by Judge Evans of the Franklin Common Pleas, and subsequently affirmed by the circuit court, which was affirmed by the Supreme Court, 53 Ohio St., 663.
    
      Kibler & Kibler and B. G. Smythe, for defendant in error.
    Although this case wms tried upon the theory that the contract which Lucas made not to resort to proceedings at lawq Avas a binding contract on him providing the lodge accorded him a hearing to which he Was entitled by the rules of the order, we claim that this contract was void and not binding upon Lucas. We claim this under the authority of the case of B. & O. R. R. Co. v. Stankard et al., 56 Ohio St., 224; Supreme Council of the Order of Chosen Friends v. Forsinger, 125 Ind., 52; Whitney v. National Masonic Accident Association, 52 Minn., 378; Insurance Co. 
      v. Morse, 20 Wallace, 445; Stephenson v. Insurance Co., 54 Me. 55; Mentz v. Insurance Co., 79 Pa. St., 478; Reed v. Ins. Co., 138 Mass., 572 ;Viney v. Bignold, 27 Cent. Law J., 40.
    But if we are wrong about tliis, were Lucas’ contract binding, could the order object to Lucas resorting to an action at law, when the order refused to grant him a hearing to which he was entitled? Counsel for plaintiff in error cite no decision or authority in favor of such a proposition. Their citations are all addressed to a state of facts which do not exist in this case, viz: To a case where the order has accorded the plaintiff a full and fair hearing according to the rules and regulations. It is universally held that this full and fair hearing must be accorded by the order to entitle them to insist upon the bar.
    We claim as to any benefit societies even where there be an agreement that there shall be no right of appeal to the courts, yet such a right nevertheless exists to the member, where by the violation of the rules of the order by the order itself, he has been deprived. of some substantial right. Canfield v. Knights of Maccabees, 13 L. R. A., 625; Mead v. Sterling, 62 Conn., 586, 23 L. R. A., 227.
    If it should be claimed that the court erred in refusing to permit evidence of the order’s adjudication and decisions upon introduction of the by-laws, it is held in the case of Manson v. Grand Lodge A. O. U. W., 30 Minn. 509, that the courts are not bound by such decisions.
   Burket, J.

It is urged by counsel for defendant in error that the record does not show that the bill of exceptions was filed in the circuit court. The record shows that eight original papers were filed in the circuit court, and the bill of exceptions being an original paper under section 6716, Revised Statutes, it sufficiently appears by the record that it was filed in that court. It is further urged that the record does not show that the demurrer to the amended petition was filed in the court of common pleas. The journal of January 30,1896, recites as follows: “This day came the parties and this cause came on for hearing upon the separate demurrers filed by the several defendants to the amended petition of plaintiff and was argued by counsel.” It cannot be presumed that a court and counsel on both sides would hear, argue and pass upon a demurrer which had never been filed. And as this demurrer has been argued by counsel and decided by the court, and bears the file mark of the clerk, we are satisfied it was filed, and that the omission of its filing from the printed record is the result of some oversight or mistake.

There is no promise or obligation on part of the members of the lodge to pay sick benefits to members set out in the petition. The averment is that a disabled member is entitled, under the laws of the order, to receive sick benefits, but there is no averment that he is to receive sick benefits from his fellow members, and the irresistible inference is that he is to receive his benefits from the lodge, and not from the members individually. True he says that there is due to him from the members of the lodge by reason of the premises the sick benefits claimed; but he has set out the premises in the forepart of his petition and those premises show that the benefits are not due from the members but from the lodge; and there is no averment in the petition that the officers are liable to pay sick benefits. The laws of the order as pleaded and introduced in evidence, show no obligation upon the members to_ pay sick benefits, either individually or as officers of the lodge. The demurrer to the amended petition should therefore have been sustained as to the officers and members of the lodge, and upon the conceded facts in the case there is no cause of action against them.

The petition seems to state a good cause of action against the lodge. It is silent as to whether there is a tribunal within the lodge to pass upon the question of sick benefits when claimed by a member, and it may well be doubted whether a court can take judicial notice of the existence of such tribunal. The better practice is to plead the existence of such tribunal if there is one, in the petition, and aver that the plaintiff has exhausted his remedies in the lodge, and has a cause of action .against the lodge in the civil courts, setting out the facts which give him such cause of action. In this case the existence of a tribunal in the order for the settlement of all disputes, as to claims for sick benefits, is shown in the answer, and also by the printed laws of the order attached thereto and introduced in evidence. We cannot hold therefore that there was prejudicial error in overruling the demurrer of the lodge to the amended petition of the plaintiff.

There was no error in overruling the demurrer of the lodge to the reply, for the reason that if the lodge arbitrarily refused to pay his sick benefits and refused to investigate the plaintiff’s right to receive the same, and refused to permit the committeeman selected by him to serve or act in his behalf, he had a right to bring his action in the civil courts to recover such benefits. But if objection was made by anyone or for any cause to the committeeman selected by Mm, and he thereupon selected another who accepted and served on the committee, he thereby waived the first selection, and the committee as constituted became a lawful committee under the laws of the order.

There was error in the admission in evidence of the letter from J. E. Dow. The only purpose of the admission of that letter was to prove that the plaintiff below had filed a transcript -with Mr. Dow as District Deputy Grand Master. The controversy was between the plaintiff and the lodge, and what a third party said about the matter could not bind the lodge. Mr. Dow was not acting as the agent of the lodge, and if he had been what he said as to a past transaction would not bind his principal. lie was acting while in office officially as the deputy of the Grand Master, to supervise all the lodges within his district. What he did or said while in office was for and in behalf of his superior, the Grand Master, and not for or in behalf of the lodge to which he belonged. It is not clear whether or not he was still in office when he wrote this letter, but in either event it was not competent and could not bind the lodge. For aught that appears his testimony could have been obtained by deposition or otherwise, and this should have been done.

It was also error to permit the plaintiff below to testify as to the contents of the letter to him from the Grand Master at Toledo. The lodge was not bound by what was said in the correspondence between the plaintiff and the Grand Master. If the contents of the letter were competent, the letter press copy thereof, kept by the Grand Master, was better evidence than the recollection of the plaintiff. Such officers usually keep letter press copies of all official letters written by them, and an effort. should first be made to obtain such copy before resorting to less satisfactory testimony.

The most difficult question in the case arises upon the charge of the court, and the refusal of the court to charge as requested.

The laws of the order as shown in the evidence provide that when a dispute arises as to the payment of sick benefits, the Noble Grand shall appoint one member and the claimant of benefits one member, and these two shall choose a third, and the three members thus chosen shall constitute a committee to hear the evidence and report to the lodge; and the claimant being notified, the lodge shall proceed to consider the report, and determine whether the claimant is entitled to benefits. From the action of the lodge the claimant may appeal or prosecute error, to what is known as the Grand Committee, which consists of all the members in the district who have at any time held the office of Noble Grand in any lodge, and are in good standing. Such members are known as Past Grands. The Past Grands of the lodge to which the claimant belongs are by the laws of the order excluded from participating in the proceedings of the Grand Committee, upon such appeal or proceedings in error, so that the Grand Committee for the trial of such appeal or proceedings in error, consists of the Past Grands of the district, other than the Past Grands of the lodge to which the claimant belongs. The Grand Committee may hold regular meetings, and the District Deputy Grand Master shall call a special meeting on the request of five Past Grands i-n good standing, or he may, if deemed necessary, order a special meeting without request. From the action of the Grand Committee an appeal may be taken to the Grand Lodge, or error may be prosecuted thereto. If the District Deputy Grand blaster fails to perform his duties the- attention of the Grand blaster may be called to such failure, or a complaint in the nature of a grievance may be filed against him in the Grand Lodge, and he may be compelled to perform his duty. Prom the action of the Grand Lodge an appeal may be taken to the Sovereign Grand Lodge, if the Grand Lodge votes to permit such appeal.

The claim of the lodge was, and it requested the court to so charge, that the claimant of benefits must seek his remedy in said tribunals of the order, and that their determination was final, and that the civil courts had no jurisdiction of the matter. The court charged the jury that the claimant must in the first instance seek his remedy in the tribunals of the order, and wound up by the following:

“If that tribunal has been created, and has finally heard and determined this matter, that determination is conclusive upon the parties; but if, for any reason they have refused to hear and determine this matter in any of the various stages provided for its determination by the rules of the order, then he may come into court and sue and ask the court to determine his right to recover; and if he has a right to recover, he may recover it in the court.”

The request to charge was too broad in this respect, that it robs the civil courts of their jurisdiction in a matter for the recovery of money, by an agreement made in advance of the accruing of any claim or demand. The case of B. & O. R. R. Co. v. Stankard, 56 Ohio St., 224, is to some extent in point, and shows that after the settlement of preliminary matters and the fixing of the amount due, the courts cannot be robbed of their jurisdiction to compel payment. The right to appeal to the courts for the redress of wrongs is there held to be inalienable, but is by mistake printed “alienable.” The same mistake was made in Palmer and Crawford v. Tingle, 55 Ohio St., in fourth line from the top of page 443 where the word “inalienable” is printed “alienable.”

It is urged that the right to resort to the civil courts for redress may be waived, and cases are cited, among others, Butt v. Green, 29 Ohio St., 667, 671, Avherein it is held that a party may waive constitutional and statutory provisions intended for his benefit and protection. No fault is-found with that case, but it is not applicable to the question here under consideration. The distinction is this: after a right has accrued or an obligation has been incurred a party may waive his rights or refuse and neglect to enforce them, or he may by contract bind himself to submit the matter to arbitration or other special remedy. But a party cannot bind himself by contract in advance to renounce his right to appeal to the courts for the redress of wrongs. If this could be done an association might be formed in the state which would renounce our constitution and laws, and set up a different system of government for themselves, and in case of wrongs and oppression they would be debarred from resorting to our courts, and would be compelled to submit to the decisions of their own tribunals, and would most likely become dissatisfied and disorderly, resulting in riot and bloodshed. • The AA hole state has an interest in all its inhabitants, and it is to its interest that the rights of all should be protected and enforced according to the course of jurisprudence it has provided; and for that reason its courts are ahvays open for the redress of wrongs, and no person can by contract in advance, deprive himself of the right to appeal to them. As pointed out, in the case of B. & O. R. R. Co. v. Stankard, supra, contracts may provide for ascertaining and fixing certain matters in a particular manner, but the ultimate adjudication of the questions of law must, remain in the courts, unless waived after the rights, have accrued, or the obligations have been incurred. Jurisdiction cannot be conferred upon courts by contract, and it cannot be taken away by contract; but in certain cases a party may be estopped by his contract from invoking the jurisdiction and aid of a court in his behalf.

The Stankard case is different from the case at bar in this: In that case the construction of language,, the meaning of the regulations, or of any writing, decision, instruction or acts was to be conclusively determined by the superintendent, or by the committee-on appeal, and it was held that the court could not be-robbed of its jurisdiction to put its own construction upon such matters. In the case at bar it is claimed by the lodge that the tribunals of the order have sole-jurisdiction of the subject matter, and that the courts, cannot take jurisdiction in any event to compel payment of sick benefits. The claim is too broad. If the lodge refused to proceed substantially as required by its laws to settle the dispute as to sick benefits, or, if the right to such benefits should be determined in favor of the claimant and the lodge should fail to pay the same, an action might be maintained for the recovery thereof, but mere irregularities in the proceeding could not be regarded as a refusal to act. To authorize an action in court there should be no pretense-of a proceeding in the lodge-under the laws of the order upon proper request by the claimant for the settlement of the right to sick benefits, or else the proceedings should be so defective in substance as to render a judgment in a court of justice under the same circumstances null and void. There was therefore no error in refusing the charge as requested.

The next question is as to the charge as given, to which there was an exception. The lodge referred the dispute as to sick benefits to a committee of three as provided by the laws of the order, and that committee reported adversely to the claimant, and when he was present in the lodge and no further notice to him required, the lodge acted upon the report and unanimously adopted it, and thereby determined that he was not entitled to sick benefits. This was conclusive against him unless he should succeed in changing the result by a proceeding in one of the higher tribunals of the order. He gave notice of appeal, this seems to be conceded by all. He says that he obtained a transcript from the secretary, Avhile the secretary says he does not recollect of giving him a transcript and does not remember that he asked for, or demanded one. There is no claim or pretense that the lodge or the secretary refused to give him a transcript. The lodge therefore did all that the laws of the order required to enable the plaintiff to perfect his appeal and establish his right to sick benefits before the Grand Committee. The lodge had a determination in its favor, and by giving him a transcript did all in its power, and all the laws of the order required of it, to enable him to perfect his appeal; and if he thereafter failed in his appeal, it Avas his misfortune and not the fault of the lodge; and the lodge'could not be held in an action at law because he failed to secure a hearing before the Grand Committee on his appeal. The members of the lodge formed no part of the Grand Committee in the hearing of his appeal. By obtaining the request of five Past Grands in his district he could have compelled the District Deputy Grand Master to convene the committee and hear his appeal. It was his duty and not the duty of the lodge to see to the convening of the Grand Committee, and his failure to induce the District Deputy Grand Master to convene the Grand Committee, could not be charged against the lodge, and could not give him a right to sue the lodge for sick benefits which it had been determined by the laws of the lodge that it did not owe to him. As well might a party who has been defeated in a court of justice and appealed to a higher court, and failed for any cause to perfect his appeal, claim that by reason of such failure he has the right to begin a new action to recover his demand.

The court charged that “if for any reason they have refused to hear and determine this matter in any of-the various stages provided for its determination by the rules of the order then he may come into court, etc.” This is too broad. The lodge was not responsible for what occurred in the various stages in the higher tribunals after it got beyond the lodge. The determination was against him in the lodge, and after the transcript was furnished to him by the lodge, the burden was thereafter on him to get rid of that determination, and if he failed in his appeal by reason of his own negligence or the negligence of others than the lodge, he cannot hold the lodge responsible for such negligence, and cannot make the same a basis of an action against the lodge. There was therefore -error in the charge as given.

One ground of error in the action for a new trial and also in the petitions in error, is that the amount of the verdict is excessive. The special verdict shows that the time was calculated to September 21, 1896, while the petition was filed December 30, 1892, and', it is averred that he was expelled from the order August 4,1891. It seems clear that he could not recover' for sick benefits which had not accrued when he filed, his petition, and that no sick benefits could accrue-after his expulsion. The verdict was therefore excessive.

For the errors above pointed out the judgments below Avill be reversed and a new trial granted as to the

claim against the lodge, and as to the other defendants below, final judgment will be entered in their favor.

Judgment accordingly..  