St. John Nepomicine Society v. Zoulek. However, if the society has provided no method whereby a member whose claim has been rejected by it, may obtain a review of the decision and no tribunal for the hearing of an appeal from such decision, the member whose claim has been rejected may sue for the recovery of the same in the civil courts. The defendant in error did not make any appeal within the society from the rejection of her claim, and this leaves for determination the question whether any such appeal was required under the laws of the organization. It is provided by Art. 21, Sec. 1, in substance, that each member who is admitted to the society is required to sign his name to the constitution as a sign that as a member, he acknowledges the constitution and the constitution of the union as the law of the society, and will be guided by the rules therein contained, and will fulfill all his duties and observe all laws thereof. Article 21, Sec. 2 of the constitution of the society pro vides: "As a sign that a member should he be punished for a transgression of the society's or the union's constitution either for indecent or immoral conduct, by a jury or by the constitution alone, or by the vote of the members, he has no right to arise against the society except by an appeal to the union." Article 18, Secs. 1 and 2 of the constitution are as follows: "1. Should a member be dissatisfied with the finding of the jury or the society's decision, he may appeal to the union. "2. The appeal must be handed to the local president within at the most 20 days, and must contain definite reasons for complaint, when and how he was unjustly treated by the society. It is claimed that by virtue of these provisions, the defendant in error was required to appeal to the union, but no mention is made of the subject of sick benefits in any of the sections of the constitution referred to, and, in our opinion, they do not refer to such benefit. The appeal from the finding of the jury or the society's decision to the union, that is provided for, apparently refers to any punishment for a transgression of the society's or union's constitution, and it can hardly be contended that the refusal to Cuyahoga County Circuit. pay sick benefits is a punishment for a transgression of the constitution of the society or of the union, even though the refusal be based upon the claim that the member asserting his right to benefits has, by his own immoral life, produced his sickness. No appeal having been provided whereby the defendant in error could obtain a review of the action of the organization in refusing to allow her application for benefits, it follows that she had the right, upon the rejection of her claim, to institute a suit to recover them. Error is also claimed to have been committed by the trial court in refusing to receive in evidence a certain letter and the minutes of certain meetings of the society. The bill of exceptions contains no intimation of what the contents of this letter or of the minutes offered may have been. There was no offer made to prove their contents, so that we are unable to pass upon their competency. No prejudicial error in the ruling of the trial court on matters of evidence has been brought to our attention. Another ground of alleged error is founded upon the contention that the court erred in charging the jury in that part of the charge in which the court, in substance, told the jury that the only question for their determination was whether or not intoxication or the excessive use of intoxicating liquor was the cause of the insanity of John Zoulek. We think, however, that in the state of the pleadings and the evidence, the court was right in so charging the jury. There was no dispute in the evidence that at the time suit was brought, John Zoulek was a member of the society; that all of his dues and assessments had been paid; that he was adjudged insane about September 1, 1903, and has been insane ever since; that the society had been requested to pay the benefits sought to be collected in the suit and had refused payment. The answer filed in the court of common pleas in the action based the refusal of the society to pay sick benefits to John Zoulek upon the ground that he had led such an intemperate life as to bring about his sickness, and in view of the undisputed facts to which attention has been called, there was no St. John Nepomicine Society v. Zoulek. issue of fact left in the case but the simple determination of whether or not Zoulek's sickness or insanity had been caused by his own addiction to drink. It is also claimed by the plaintiff in error that the verdict is excessive to the extent of interest on $202 from September 1, 1903. The bill of particulars filed in the justice court asked for judgment for $202 only, no mention being made of interest. The petition filed in the court of common pleas prayed, not only for judgment for $202, but also for interest from September 1, 1903. The charge of the court authorized the jury to compr interest on such amount of sick benefits as they should John Zoulek was entitled to have received on September 1, 19 The amount of the verdict indicates that interest was figure on the amount of benefits to be recovered in the action. It is claimed that there can not be a recovery for a greater amount than that sought to be recovered in the justice court. No objection, however, seems to have been made at any stage of the case to the claim for interest. The amount sought to be recovered was within the original jurisdiction of the court of common pleas. It has been held that although the cause of action asserted in the court of common pleas is entirely different from that tried before the justice of the peace, yet, if it is within the original jurisdiction of the common pleas court, that court may acquire and exercise jurisdiction on the voluntary appearance and consent of the defendant. Wilson v. Wilson, 30 Ohio St. 365. This principle seems applicable to the case under consideration. The petition in error contains other assignments of error, but no claim has been made with respect to any other errors than those which have already been considered, and it follows that the judgment of the court of common pleas must be affirmed. Marvin and Winch, JJ., concur. Cuyahoga County Circuit. NEW TRIAL [Cuyahoga (8th) Circuit Court, May 27, 1912.] Marvin, Winch and Niman, JJ. SHERWIN-WILLIAMS Co. v. GLOBE RUTGERS FIRE INS. Co. 1. Motion to Vacate Order Overruling Motion for New Trial. When a trial judge, upon submission of a motion for a new trial, promises to let the defendant's attorneys know of the disposition of the motion, which he fails to do, but overrules the motion without their knowledge, of which action they do not learn until after time for filing a bill of exceptions has passed, this constitutes such "irregularity in obtaining a judgment or order," within the purview of Sec. 11631 G. C., as to authorize the court at a subsequent term to vacate the order overruling the motion for a new trial and set the same for hearing. 2. Judicial Notice of Judge's Own Conduct. On a motion to vacate an order overruling a motion for a new trial on the ground of irregularity in obtaining it, which irreg ularity is alleged to be an act or course of conduct of the judge, said judge in passing on the motion, may take into consideration, without other evidence, such facts as came within his own cognizance. 3. Journal Entry Embodying Facts Within Knowledge of Court Treated as Finding of Fact and Law. When a journal entry embodies facts relating to the court's own action on the subject before it, which disclose on their face that they were within the knowledge of the court, such journal entry should be treated as a finding of facts, and given the same effect as though the court had been specially requested to make a finding of fact and of law. 4. Affidavit of Good Defense not Filed on Motion to Vacate Order Overruling Motion for New Trial. An affidavit that the defendant has a good defense need not be filed with a motion after term to vacate an order overruling a motion for a new trial. ERROR. Squire, Sanders & Dempsey, for plaintiff in error. NIMAN, J. The plaintiff in error in this proceeding seeks a reversal of the action of the court of common pleas in granting a motion to vacate and set aside a former order of the court whereby the motion of the defendant in error for a new trial was overruled. Sherwin-Williams Paint Co. v. Globe Rutgers Fire Ins. Co. The action in the court below was for the recovery of money under an insurance policy. The trial took place at the April, 1911, term of court, and resulted in a verdict for the plaintiff on June 14, 1911. Within three days thereafter the defendant filed its motion. for a new trial, which was held by the court until December 22, 1911, in the September, 1911, term, when it was overruled, and judgment entered on the verdict. Counsel for defendant did not learn of this until the time for filing a bill of exceptions had passed. On February 12, 1912, in the January term of that year, the defendant filed a motion to set aside the order overruling its motion for a new trial. In the same term, April 26, the court granted this motion and set aside "the order and decision of the court overruling the motion for a new trial and the judgment entered thereon," and set the hearing on the motion for a new trial for the following day, at which time the motion for a new trial was overruled and judgment entered on the verdict. The motion involved in this proceeding was founded on Sec. 11631 G. C., which among other things provides: "The common pleas court or the circuit court may vacate or modify its own judgment or order after the term at which it was made: "3. For mistake, neglect, or omission of the clerk or irregularity in obtaining a judgment or order." The irregularity relied upon by the defendant is stated in its motion in the following language: "Said case was tried at the April term, A. D. 1911, of this court, and a verdict rendered. In due time thereafter, a motion for a new trial was filed by this defendant. Defendant endeavored to obtain a hearing on said motion at that time, but was unable to do so, and no hearing was had thereon notwithstanding the efforts of this defendant. At the September term of this court, this defendant made repeated efforts to obtain a hearing on said motion, and the trial judge three times served notice on attorneys for plaintiff and defendant to appear and argue said motion. On each of said occasions, this defendant appeared by counsel ready to argue said motion, but counsel for plaintiff did not appear, being engaged in the trial of other cases. On request of the trial judge, this defendant had the testimony written out, of the witness in the course of whose examination the |