This suit was commenced at the October term, A. D. • 1888, of the Circuit Court of Marshall County, by defendant in error, to recover damages to her resulting from the loss of her husband, whose life was insured in an accident policy of plaintiff in error, for $4,000. The defendant in error resided in Marshall County, III., and brought suit in that county and caused the summons to issue, directed to the sheriff of Cook County, who, on the 1st day of August, 1888, served it on John M. Hamilton, president of plaintiff in error, in said Cook County, and returned the same so served to the office of the Circuit Court of Marshall County. On January 14, 1889, plaintiff in error filed its plea in abatement to the jurisdiction of- the court in said action by Robert B. Edwards, its attorney in fact, in which it formally averred that before and at the time of the commencement of the action by the defendant in error, it was, and still is, an association, organized under an act of the General Assembly of the State of Illinois, entitled “ An Act to provide for the organization and management of corporations, associations and societies for the purpose of furnishing life, indemnity or pecuniary benefit to the widows, orphans, heirs, relatives and devisees of deceased members, or accident, or permanent disability indemnity to members thereof,” approved June 18, 1883, and in folce July 1, 1883; and that the defendant at the time of the said organization, and before and after the time of the commencement of this suit, had and still has its principal office and situs and residence in the city of Chicago, Cook County, Illinois, and not in said county of Marshall, and plaintiff in error was not found or served in said Marshall County, Illinois, but in Cook County, Illinois, and that it is not now, and was not at the time of said service, an insurance company, within the meaning of and subject to. service of process as provided in the act of the General Assembly of said State entitled, “An Act concerning the jurisdiction of Circuit Courts in cases instituted against life insurance companies,” approved April 3, 1873, and in force July 1, 1873, nor did any of its members at any time since its organization receive or become entitled to any moneys as profits from the business of said organization, etc. To this plea in abatement the court sustained the demurrer interposed by defendant in error. Thereupon plaintiff in error took leave and pleaded to the merits of the case. Afterward, upon a trial before a jury, a verdict was returned in favor of defendant in error for $4,526.54, and judgment rendered thereon against plaintiff in error for that amount, to reverse which this writ of error is sued out.
Among other things, plaintiff in error assigns for error the sustaining the demurrer to the plea in abatement to the jurisdiction of the court, but to the consideration of this question by this court defendant in error objects, for the alleged reason that plaintiff in error had waived its right to raise that question here by its action in asking leave and pleading to the merits of the case. Several other errors are assigned by the plaintiff in error, but in the view wre take of the case it will only be necessary for this court to decide the two first questions raised by the record, and we shall therefore not notice any of the other various errors assigned on the record and urged here. Naturally the first question for us to consider will be whether or not the plaintiff in error waived its right to assign for error here the action of the court in sustaining the demurrer to the plea in abatement, by pleading in bar, as in case of our deciding in the affirmative we can not consider the error assigned on the demurrer. Upon this point we need scarcely say more than that we have carefully examined the law and the decisions of the Supreme Court upon this point, and find that it is fully held in various cases that a party does not waive the right to assign for error in the Appellate Court the sustaining of a demurrer to a plea in abatement to the jurisdiction of the trial court by subsequently asking leave of the court to plead to the merits. And we find no cases in force holding otherwise. Delehay v. Clement, 3 Scam. 201; Weld v. Hubbard, 11 Ill. 574; C. & V. R. R. Co. v. Joiner, 72 Ill. 520; see, also, Humphrey v. Phillips, 57 Ill. 135, and Drake v. Drake, 83 Ill. 526.
We shall then proceed to consider and determine the question of the right to serve the plaintiff in error with summons in Oook County. The material allegations of the plea in abatement is as to whether plaintiff in error is an insurance company within the meaning of See. 3 of the Practice Act, Starr & C. Ill. Stats. If so, then the service was proper, otherwise improper, and the demurrer to the plea should have been overruled. After a full investigation of all the statutes bearing upon the question, and the general law as to what constitutes an insurance company within the meaning of that term as generally understood, we are clearly of the opinion that plaintiff in error is not an insurance company, either fire or life, and not subject to be served with process out of the county where it has its office of residence, as was according to the plea in this ease averred.
The second section of the Practice Act provides that “It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found except in local actions, etc.,” and the third section provides that “ the Circuit Court of the county wherein the plaintiff or complainant may reside shall have jurisdiction of all actions hereafter to be commenced by any individual against any fire or life insurance company, either incorporated by any law of this State or doing business in this State. " And all process issued in any cause commenced in the county wherein the plaintiff may reside, wherein an individual may be plaintiff or complainant, and such company defendant, may be directed to any county of this State for service and return.” The general rule as established by the statute, is that any defendant or respondent may not bé sued out of the county where he resides, or may be found, with the exception of fire or life insurance companies, which may be sued where the plaintiff or complainant resides.
How, if" the plaintiff in error can not be classed as a life insurance company, clearly it can not be sued except in tlie county where it in legal contemplation resides, that is, inGook county.
The plea avers that none of plaintiff in error’s members at any time since its organization became entitled to or received any money as profits from the business of the organization, and the act under which it was incorporated forbade the receiving such profits. In Golden Rule v. The People, 118 Ill. 492, the Supreme Court say: “Rot to be deemed an insurance company under the act, it must be intended to benefit the widows, orphans, heirs and devisees of deceased members and members who have received a permanent disability, and where members receive no money, as profits or otherwise, except for permanent disability.” Row no profits of the kind forbidden wore to be received by any member of plaintiff in error’s organization. Hence it does not fall within the definition of an insurance company.
. Besides this, the legislation under the act under which the corporation of plaintiff in error was organized, expressly provides (Sec. 9, Starr & C. Ill. Stats. 1350): “All corporations, associations or societies, organized under the provisions of this act, * * * for the purpose of furnishing life, accident or permanent disability, indemnity or mortuary benefit on the assessment plan, in accordance with the provisions of the first section of this act, shall not be deemed insurance companies, nor subject to the laws of this State relating thereto.” We have no doubt that the Legislature has the power to define what shall or shall not be deemed or held to be insurance companies in this State, or to regulate the practice concerning the service - of summons on a certain class of incorporations. So, as the plaintiff in error was and is not a corporation falling within the class of insurance, fire or life companies, and became expressly excluded from such class by the statute, we are clearly of the opinion that the third section of the practice act does not apply, and that the service of summons was illegal, being served in a county not authorized by law, and that, in consequence, the court below failed to acquire jurisdiction of the plaintiff in error, and should have overruled the defendant in error’s demurrer to the plea in abatements. This was held under a statute similar, though not as express and definite as the one under which the plaintiff corporation in this case was organized by the Appellate Court of the Third District in N. W. Life Association v. Stout, 32 Ill. App. 31.
The objection is made by defendant in error that the plea does not set out the title of the act under which the plaintiff in error is averred to be organized, in that the word “ and ” instead of “ or ” is used in using the words “ associations or societies,” as used in the statute. While we do not deem this a material variance, yet the real material averment was as to whether plaintiff in error was or was not an insurance company, which was expressly made.
The averment that the pdaintiff in error was organized under the first section of the act, was sufficient without further negative averments, except the one made that no profits were to be shared by living members. That portion of Sec. 9 which provides that the act shall not apply to organizations purely social, religious or benevolent,“ where no commissions are paid, nor salaried officers or agents or employes,” has no application to the questions here involved, as is supposed by counsel for defendant in error. That has reference to an entirely different question.
Holding, then, that the court erred in sustaining defendant in error’s demurrer to plaintiff in error’s plea in abatement, and that the court below acquired no jurisdiction by the service on the president of the company in Cook County, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.