#### JOHNSON v. REFORMERS.

(Filed May 11, 1904).

1. RECORDARI — Appeal. ■

Where a recordari is ordered as a substitute for an appeal, but is not docketed, the appellee has a right to docket the case and have it dismissed at any succeeding term of the court.

2. CONTRACTS — Insurance.

A mutual order for insurance cannot change its constitution subsequent to the contract with one of its members and to his detriment except by mutual consent.

3. CONTRACTS — Burden of Proof.

The burden of showing that a contract was changed by mutual consent is on the person alleging the same.

4. APPEAL — Hew Trial — Verdict.

Where a verdict is set aside for a supposed error of law, an appeal lies therefrom.

5. APPEAL — Dismissal—Judgment—Exceptions and Objections.

No appeal lies from a refusal to dismiss an action, but an exception should be taken and the trial proceeded with.

6. FOREIGN CORPORATIONS — Domestication—Jurisdiction.

A foreign corporation may be sued in this state though it has not been domesticated.

7. SERVICE OF PROCESS — Waiver—Jurisdiction—Summons.

Where a defendant asks for a recordari, he thereby waives a lack of service of summons.

ActiON by Nelson Johnson against tbe Grand Fountain of tbe United Order of True Reformers, beard by Judge T. A. McNeill and a jury, at September Term, 1903, of tbe *386Superior Court of Eoesyth County. From a judgment for tbe defendant tbe plaintiff appealed.

Louis M. Swink and J. S. Fitts, for tbe plaintiff.

J. S. Lanier, for tbe defendant.

Clark, C. J.

Judgment was rendered before a justice of tbe peace September 30, 1902. Tbe defendant took no appeal, but at December Term, 1902, on application to tbe Superior Court, obtained an order for a recordari and super-sedeas. Tbe defendant failed to give bond or to have tbe case docketed, either at that term or at tbe next succeeding term of tbe Superior Court, wbicb was beld in February, 1903. At tbe March Term tbe plaintiff moved to docket and dismiss. This was refused, and tbe plaintiff excepted. At tbe September Term, 1903, tbe recordari and supersedeas not having been yet docketed, tbe plaintiff again moved to docket and dismiss. This was refused and tbe defendant was allowed to docket tbe recordari and supersedeas at that term, and tbe plaintiff again excepted. A trial by jury was bad, with verdict against tbe defendant, wbicb tbe Court set aside on tbe ground that be bad misdirected tbe jury to allow sick benefits, whereas, subsequent to tbe contract, tbe General Order bad changed its constitution so as to provide that sick benefits should not be paid by the defendant, but by tbe subordinate lodges, and tbe plaintiff excepted.

There was error in both particulars. Tbe recordari was granted as a substitute for an appeal, and not having been docketed, the plaintiff bad a right to docket the case and have it dismissed at March Term, 1903, and also at September Term. Clark’s Code (3 Ed.), page 731; Brown v. Plott, 129 N. C., 272; Davenport v. Grissom, 113 N. C., 38; Ballard v. Gay, 108 N. C., 544; Boing v. Railroad, 88 N. C., 62.

As to tbe second ground, tbe defendant could not change *387its constitution subsequent to the contract, to the detriment of the other party, except by mutual consent. Bragaw v. Lodge, 128 N. C., 356, 54 L. R. A., 602, and this was not shown. It was error against the plaintiff to put the burden upon him to show that there was no consent to the change. The opposite was held to be the law. Hill v. Life Asso., 128 N. C., 463; Strauss v. Life Asso., 128 N. C., 465, 83 Am. St. Rep., 699; Simmons v. Life Asso., 128 N. C., 469; Bragaw v. Lodge, 128 N. C., at page 357.

The Judge having set aside the verdict and granted a new trial for a supposed error of law, an appeal lies to review him. Bryan v. Heck, 67 N. C., 322; Gay v. Nash, 84 N. C., 335; Thomas v. Myers, 87 N. C., 31; Wood v. Railroad, 131 N. C., 48. The refusal to dismiss not being a final judgment no appeal then lay, and the plaintiff properly noted an exception, which brings the ruling up for review on this appeal. Fertilizer Co. v. Marshburn, 122 N. C., 411, and other cases cited in Clark’s Code (3 Ed.), page 738.

The defendant’s exception to the jurisdiction, taken in this Court, that the defendant is a foreign corporation and not domesticated here, hence cannot be sued here, is without merit. The summons was served on its agent. Jester v. Packet Co., 131 N. C., 54. Even if there had been originally lack of service the defendant waived objection by coming into Court, asking for a recordari and trying the cause upon its merits. Clark v. Mfg. Co., 110 N. C., 111. It would have been otherwise if the defendant had entered a special appearance and, that being overruled, had excepted and gone to trial. State v. Johnson, 109 N. C., 852.

The order setting aside the verdict and judgment is reversed. This renders it unnecessary to direct the dismissal of the recordari.

Reversed.