Smith v. Wigton. plemental order for the examination of Sarah, while this action was pending, without requiring notice to be given to her or her attorney; that an attorney for the plaintiff, with a short-hand reporter, went to her residence and administered to her an oath and then proceeded to question her in regard to the transaction, and the substance of that testimony is in evidence on behalf of the plaintiffs. No court should grant an order of that kind except upon notice. It is evident that the order was obtained without notice and the whole proceedings were ex parte. We do not care to comment on such procedure. Upon the whole case it is apparent that the defendant Sarah is a bona fide purchaser and is entitled to protection. The judgment of the district court is reversed and the action dismissed. REVERSED AND ACTION DISMISSED. THE other judges concur. 35 460 59 733 733 WILLIAM G. SMITH V. WIGTON & WHITHAM. [FILED OCTOBER 26, 1892.] 1. Pleadings: AMENDED SUPERSEDE ORIGINAL. Defendant having filed an answer to the petition, and plaintiff thereupon filing an amended petition, to which defendant answers without making the original answer part of the second answer, the case stands for trial on the amended pleadings, and the original pleadings are disregarded. 2. Action for Money Had and Received: Defense Under CONTRACT MUST BE PLEADED. Where the defendant claims money as due him under a contract with the plaintiff, he must plead the facts showing his right to retain the same. 3. : PLEADINGS: GENERAL DENIAL: FACTS IN ISSUE. In an action in substance for money had and received, a general denial only puts in issue the receipt of the money. ERROR to the district court for Madison county. Tried below before NORRIS, J. Smith v. Wigton. H. C. Brome, for plaintiff in error. J. B. Barnes, contra. MAXWELL, CH. J. This action was brought by the plaintiff against the defendants to recover the sum of $3,500.47 with interest and costs. The amended petition is as follows: "Comes now the plaintiff and by order of court files this his amended petition, and for cause of action against the defendant states: "First-That on or about the 23d day of March, 1888, the defendant received from the clerk of the district court of Platte county, Nebraska, the sum of ten thousand seven hundred and ninety-five and 25 dollars to and for the use of plaintiff. "Second-That on or about the 2d day of April, 1888, and before the commencement of this action, plaintiff demanded an accounting, settlement, and payment thereof from the defendants. "Third-That the defendants have failed to account for or pay over to said plaintiff any part of said sum except the sum of $7,668.50, leaving a balance still due, owing, unpaid, and not accounted for to this plaintiff, amounting to three thousand one hundred twenty-six and 75 dollars, which last named sum the defendants refuse to pay plaintiff. 100 "Fourth-That said, defendants did not obtain said money from said clerk of the district court of Platte county, Nebraska, under or by virtue of any contract with this plaintiff. "Wherefore plaintiff prays judgment against the defendants for the sum of three thousand one hundred and twenty-six and 75 dollars, and interest thereon at seven per cent per annum from March 23, 1888, and the costs of suit." It appears that prior to the filing of the amended peti Smith v. Wigton. tion, the plaintiff had filed a petition in which he did set out in substance a contract of employment of the defendants, and that they had prosecuted the suit to judgment, and collected thereon the sum of $10,795.28, forty per cent of which was to be retained as attorney fees; that they had paid the plaintiff the sum of $5,225, leaving a balance due the plaintiff of the sum of $1,251.67, with interest and costs. The answer to the amended petition is a general denial. In the first answer the contract is denied, but it is alleged that the plaintiff was unable to pay the expenses of the suit, and that the defendants loaned the plaintiff money to pay the same, to-wit, the sum of $344.30, which sum was to be deducted from the amount of the plaintiff's judgment. They also allege that instead of forty per cent of the judgment they were to have fifty per cent. We are unable to see any benefit the parties can derive from the original pleadings. Where amended pleadings are filed, the case is tried upon the amended pleadings alone. (Bank v. Telegraph Co., 30 O. St., 555; Maxw., Code Pl., 583.) An amended answer supersedes the first answer. (Reihl v. Likowski, 33 Kan., 515.) Second-The issue presented by the amended pleadings is the receipt and retention of more than $3,000 of plaintiff's money by the defendants. The proof clearly shows that they collected more than $10,000 on a judgment recovered in favor of the plaintiff and that they still retain more than $3,000. If this is retained in pursuance of a contract to that effect it should be pleaded. It is properly a matter of defense as a justification by the defendants for retaining the money. The judgment of the district court is reversed and the cause remanded for further proceedings. REVERSED AND REMANDED. THE other judges concur. State, ex rel. Royal Arcanum, v. Benton. STATE OF NEBRASKA, EX REL. ROYAL ARCANUM, V. THOMAS H. BENTON, AUDITOR. [FILED OCTOBER 26, 1892.] Life Insurance: SECRET BENEVOLENT ORDERS: AUDITOR'S CERTIFICATE: FEES. A secret benevolent order, which issues certificates of indemnity solely to its members, whereby the order obligates itself to pay a stipulated sum on the death of any member to his widow or children, or other persons dependent upon him, upon complying with all the requirements of chapter 18, session laws of 1887, is entitled to a certificate from the auditor authorizing it to transact business in this state without paying the fees specified in section 32 of chapter 43 of the Compiled Statutes. ORIGINAL application for mandamus. Weaver & Giller, for relator. George H. Hastings, Attorney General, contra. NORVAL, J. This is an original application to this court for a peremptory mandamus to compel the respondent to issue to relator a certificate of authority to transact business in this state. Relator is a secret benevolent and fraternal society, incorporated under the laws of the state of Massachusetts, the management and control of which is confined exclusively to its members, a part of whom are residents and citizens of this state. The object and purpose of the society, in addition to its benevolent and fraternal features, is to issue certificates of indemnity to its members, promising to pay a specified sum of money, in case of the death of any of its members, to the widow, orphan, or other person dependent upon such member, all of which business State, ex rel. Royal Arcanum, v. Benton. is done by and through councils, located in this and other states of the Union. It is stipulated that relator has a sufficient membership to pay its certificates in full in case of the death of any of its members, by the usual mode of assessment; that it has filed a certificate in the office of the auditor of public accounts of this state, setting forth the total number of its members in good standing, the title and post-office address of each of its chief officers, its method of assessment upon which funds are provided to pay the certificates of indemnity by it issued, together with a certified copy of its constitution and by-laws; that on or about March 9, 1891, relator filed with the auditor a sworn statement, setting forth the total number of members in good standing on the first day of January, preceding; the total number of members who have been suspended for the non-payment of dues and assessments for the preceding twelve months, together with the amount of money paid to each, and the number of claims resisted, and the reason for resisting the payment thereof; the total amount collected for the payment of certificates of indemnity, and the amount due and unpaid upon certificates of deceased members; the total amount on hand in such fund, and the amount paid out of such fund; that relator has in all respects complied with the requirements of chapter 18, Session Laws, 1887, the same being "An act to exempt secret societies and associations from the requirements of chapter sixteen (16), of the Compiled Statutes of 1885, to define the duties, powers, and obligations of such societies and associations, and to provide penalties for violations thereof." Respondent refuses to issue his certificate to the relator, for the sole reason that relator refuses to pay the fees provided by section 32, chapter 43, Compiled Statutes, which reads as follows: "Section 32. There shall be paid by every company, association, person or persons, agent or agents, to whom this |