101 Mich. 119 | Mich. | 1894
This is an application for a writ of mandamus to compel the respondent, who is one of the judges of the circuit court for the county of Wayne, to punish as for contempt certain persons who are officers of a local branch of the Order of the Iron Hall.
The petition alleges substantially that the Supreme Sitting of the Order of the Iron Hall is a corporation organized at the city of Indianapolis, Ind., in the month of July, 1881, under and pursuant to the provisions .of article 8, chap. 24, of the Revised Statutes of the State of Indiana; that, after its formation, it entered upon the business for which it was organized, and solicited memberships throughout the different states of the Union; that the business of the order was carried on by and through the instrumentalities of so-called “local” or “sisterhood” branches, which were responsible to the main organization,
September 27, 1892, a bill of complaint was filed in the circuit court for the county of Wayne, in chancery, by one Lewis P. Durkee, in behalf of himself and all others interested who should choose to come in and be made parties, praying that a receiver be appointed in aid of and ancillary to the administration and receivership of all the property and effects of the defendant corporation appointed by the court in Indiana; and on the 1st of October, 1892, an order was entered in said Wayne circuit court, in chancery, appointing Stephen Baldwin, of Detroit, this State, as such ancillary receiver of all the property and effects of the order within the State of Michigan. Mr. Baldwin thereupon duly qualified, and entered upon the discharge of his trust, and such proceedings were thereafter had that on February 9, 1894, a final decree was entered in said Wayne circuit court, in chancery, in which it was declared that the defendant corporation, the Supreme Sitting of the Order of the Iron Hall, was on the 29th of July, 1892, and ever since had been, insolvent; that it was unable further to carry on the business for which it was organized within the State of Michigan and elsewhere; and that its assets and property should be reduced to money, and applied upon its debts and outstanding obligations and liabilities, — and in which decree Mr. Baldwin was further continued and .confirmed as ancillary permanent receiver of all such assets within the State of Michigan, with direction and authority, among other things, to take, hold, and
It is further alleged in the petition that the organization was effected and existed only under the laws of the state of Indiana, and that the branches of the order existed, not by independent authority of any state in which they were situated, but solely by the authority of the charter granted to them in pursuance of the constitution and laws of the order under which they were permitted and organized.
It is further shown that local or sisterhood branch No. 5, so called, was one branch of the Supreme Sitting of the order in the State of Michigan, and was organized as such under the rules, regulations, constitution, and laws of the Supreme Sitting; that, at the time of the filing of the bill in this cause, Peter J. Schiffer, Jr., was the chief justice of said branch, Fred. J. Kirts, accountant, John G-. Starling cashier, and George Leitch, Fred. Linsell, and Charles Hampshire trustees; that afterwards Fred. J. Kirts removed from the city of Detroit, and one Carlton H. Eoyce was appointed or elected his successor, and that Charles Hampshire died, and Charles L. Beck was after-wards appointed or elected his successor, as trustee; that,
It is further alleged that the petitioner caused a copy of the order appointing him receiver in this State, and a copy of the final decree in the cause, to be served upon the officers and trustees of said branch No. 5, and also caused personal written demands to be made upon each and every of said officers and persons for all moneys, property, goods, chattels, and effects in their hands belonging to the Supreme Sitting; but that said officers and trustees refused to comply with such demands, and pay over the said moneys, property, and effects to the petitioner.
It appears that on March 12, 1894, the petitioner caused a petition to be filed in the Wayne circuit court, in chancery, praying that the officers of local branch No. 5 of said order might be ordered and required to show cause in said court why they should not be punished for contempt in neglecting and refusing to turn over to the petitioner such moneys, property, and effects in their hands and under their control, and that an attachment or other process might be issued requiring the persons named to comply with such order; and that, on said 12th day of March, that court entered an order requiring such persons to show cause on the 19th of March why they should not be pun
1. That they were not in any way parties to or bound by the proceedings by which Mr. Baldwin was appointed receiver ancillary to the receiver appointed by the court of Indiana; and, upon information, they assert that the appointment of Mr. Baldwin was made at the instance of the Indiana receiver, though, as he is not a party, he cannot be bound thereby, and for the purpose of taking all the funds belonging to branch No. 5, as well as those belonging to other branches, out of the State, and distributing them mainly among persons who have not contributed to them, and against the equitable rights of the members of branch No. 5, and that said appointment is unauthorized and void.
2. That the Order of the Iron Hall, and especially the Supreme Sitting thereof, was devised and conducted with the grossest fraud, and that this appears in the bill filed in the cause; and that, in consequence, any contract between said Supreme Sitting and the local branches is void, at the option of said branches. They aver further, on the advice of counsel, that, while said order claimed to be a corporation organized under the laws of Indiana, in fact there has not been and is not any law of Indiana under which said corporation could organize, and that the claim to be a corporation is a fraudulent scheme, devised to deceive and defraud the members of the local branches.
3. That all the funds in their hands have been contributed by the members of said local branch No. 5; that these moneys were contributed by each member under the belief that he would receive the benefits promised in the contract; and that, with the failure of the order, justice requires that these moneys should be returned to those who contributed them.
4. That, undei- the rules of the order, every local branch, in proportion to the number of its members, should have a fund nearly equal to that held by any other local branch; and that, if the funds in the possession of each branch be distributed among its members, justice will be better done than in any other way.
6. They admit that the fund in their hands or under their control is respectively as follows: Peter J. Schiffer, Jr., has nothing; Fred. J. Kirts has about §1,000; Carlton H. Boyce has nothing; John G. Starling, George Leitch, Frederick Linsell, and Charles L. Beck have in money and securities about the sum of §15,000.
7. The respondents Starling, Leitch, and Linsell, further answering, say that on or about August 23, 1892, they, with John T. Younghusband and Charles Hampshire, were served with a writ of garnishment issued out of the circuit court for Wayne county, in a cause therein pending in which Louis Cohen is plaintiff and the Supreme Sitting of the Iron Hall defendant; that they, as garnishee defendants, are enjoined from paying over any money or delivering any property or effects to said principal defendant until the further order of the court; that said cause is still pending and undetermined in said court; that said Charles Hampshire, named in said writ, is now dead, but that, at the time of the service of said writ, he was one of the trustees of branch No. 5; and that Beck, one of the respondents herein, was duly appointed as his successor.
The issues raised by these pleadings were referred by the court to a commissioner to take proofs, whereupon the parties entered into a stipulation as to the facts which they deemed material to the issues. The stipulation admits the organization of the defendant company, and also sets out the various provisions of the statutes of Indiana authorizing the formation of corporations which were in force at the time this corporation was organized. The court thereupon entered an order denying the relief asked, and refusing to adjudge the parties guilty of contempt.
An order to show cause was issued, and the circuit judge has made a return thereto substantially as follows:
1. That the order and decree appointing Stephen Baldwin as receiver of the assets 'Of the Supreme Sitting of the Order of the Iron Hall, and the order that the local branches turn over their assets to said receiver, were granted in a suit in which none of said local branches or their trustees or other officers were made parties; that said order and decree were made without opposition or discussion, and by the consent of all the parties represented.
2. That when the answer of Peter J. Schiller, Jr., and others, officers of branch No. 5, was filed in the contempt proceeding instituted by said receiver, it became evident that several serious questions of law were involved, some of which are as follows:
a — Whether or not there was any law of Indiana authorizing the formation of the corporation of the Supreme Sitting of the Order of the Iron Hall.
b — Whether or not the bill does not show that the organization of such association was so fraudulent as to release all the branches from their obligations or contracts entered into with said Supreme Sitting.
d — Whether or not a court of equity in this State will not protect the persons equitably entitled to the funds held by the local branches of this State by a division here, instead of compelling them to prove their claims before the court of Indiana, and taking such dividends as may be there ordered.
e — Whether or not the different local branches have such connection as renders the appointment of one receiver for all proper.
f — Whether or not it is proper for a court of equity to appoint in this State a receiver ancillary to the Indiana receiver.
g — Whether or not, under the averments of the bill to the effect that all the assets of said Supreme Sitting have, been assigned to said Failey, by the voluntary assignment of said Supreme Sitting, any receiver should be appointed of such assets, and whether such appointment is not, for this cause alone, void.
There is returned into this Court, as a part of the case, a copy of the decree made by the Indiana court appointing Mr. Failey receiver, and defining his powers and duties, the constitution and by-laws of the Supreme Sitting of the order, a copy of the bill filed by Mr. Durkee, and the decree made by the Wayne circuit court appointing Mr.
It appears from the decree of the Indiana court that the corporation was organized under the Indiana statutes. Whether such organization was authorized by those statutes does not seem to have been raised by the Indiana court, or, if so, the proceedings before us do not disclose the fact. That court proceeded to authorize the winding up of the concern and the collection of the assets, and, for that purpose, directed the receiver to collect from the local branches and others, whether within or without the state of Indiana, the property and assets of the corporation. Upon the appointment of the ancillary receiver within this State, he was authorized to receive and collect the assets within this State; but it is nowhere provided in the decree that the moneys shall be transmitted by the ancillary receiver to the receiver at Indianapolis, but that he shall report to the court his doings in the matter, to the end that the court may make such further order in the premises as justice and equity may require.
By the articles of association and the laws of the order, these local branches are made subordinate to the Supreme Sitting. All their powers and duties are set forth therein, and they exist only by authority of the law of the Supreme Sitting. The moneys now held by the officers of local branch No. 5 were collected by and under the authority thus conferred. The constitution and laws of the order provide for the raising of these funds. Section 1, law 1, is as follows:
“ There shall be attached to this order a benefit fund in which members may participate (except social members) as they may severally elect, either in the sum of $1,000, $800, $‘§00, $100, or $200, on which they shall pay the rates and be entitled to the benefits prescribed in the following table,” etc.
‘'To establish a benefit- fund from which those who have held membership in the order for 30 days or more may, should they so desire, on proper application, and complying with all tjhe rules and regulations governing said benefit fund, become participants therein, and may receive the benefit of a sum not exceeding $25 per week, nor more than one-half of the amount of the benefit certificate held by each member, when, by reason of disease or accident, they become totally disabled from following any avocation; or in case of death, if a member for more than two years, one-half of the amount of the benefit certificate will be paid, less benefit received, or an amount of not more than $1,000 when they have held a continuous membership in the order for seven years:
“Provided, however, that the sum total drawn from this order by any of its members shall never exceed in sick, disability, death, and final benefits the sum named in the benefit certificate.”
This benefit fund was derived from assessments upon the holders of benefit certificates, which assessments were made by the Supreme Sitting of the order from time to time, and out of which benefits were paid in ease of the sickness, disability, or death of a member. The assessments were made through the local branches, and 80 per cent, thereof was sent to the supreme cashier of the Supreme Sitting. Law 2, § 1, is as follows:
'* Twenty per cent, of the amount received by each branch on each assessment shall be set aside and retained as a reserve fund, which fund is the property of the Supreme Sitting, and shall be subject to its control at all times, as hereinafter provided. At the expiration of the first term of six years and six months from the date of the organization of the order, one-seventh of the reserve fund then on hand shall be called for by the supreme accountant, and used by the supreme cashier in the payment of benefits; and annually thereafter one-sevénth of the reserve fund on hand shall be called for and used in like manner, unless otherwise ordered by the Supreme Sitting.”
This question has lately been before the court of last resort in Massachusetts, in the case of Buswett v. Supreme Sitting, 161 Mass. 224. There it was held that the funds held by the local branches of the order belonged to the Supreme Sitting, and we think there can be no escape from such conclusion. In a late case in equity, brought in New Jersey, the vice chancellor held the same rule, and determined that the fund belonged to the home company. Ware v. Supreme Sitting, 28 Atl. Rep. 1041. Several of the states, through their courts of last resort, have passed upon this question, and, so far as we have found, have not held to the contrary.
It is said, however, that there was no legal incorporation in Indiana. We are not called to pass upon that question. The courts of Indiana have permitted the proceedings to be brought there to wind up the affairs of the order as a valid and subsisting corporation, and have recognized its legal status. The several courts of other states have also taken jurisdiction by the appointment of ancillary receivers to aid in collecting the funds to be transmitted to the home receiver. But we think the parties here are not in a -position to raise that question-
The object of the association was to create what is called a “ benefit fund.” The constitution and laws of the order was the contract between the parties. Courts can only enforce the contract, as made, which is that the fund shall belong to the Supreme Sitting, and be distributed so that each member shall derive a benefit from the entire corpus •of the assets of the Supreme Sitting, without regard to its local habitation. It was for the purpose of collecting in these assets in this State that the ancillary receiver was appointed. There can be no doubt of the right of a court of chancery within this State to make'the appointment. Mr. Baldwin was so appointed, and is attempting to gather in these assets. These are trust funds for creditors and for distributees under the laws of the order. It is a principle now generally acted upon by the courts that a receiver or other trustee appointed in another state will be permitted, on the principle of comity, to bring an action in the domestic forum for the purpose of collecting the assets of the insolvent for distribution, in accordance with the laws of the jurisdiction within which the receiver has been appointed, when so to do will not contravene the rights of citizens of the state in which the action is brought. Metzner v. Bauer, 98 Ind. 425; Bagby v. Railroad Co., 86 Penn. St. 291; Trust Co. v. Railroad Co., 123 N. Y. 37; Comstock v. Frederickson, 51 Minn. 350; Graydon v. Church, 7 Mich. 36. But the rule of comity is never allowed to operate when it will contravene .the rights of a citizen of the state where the action is being taken. So far as this local branch and its officers and members are concerned, however, they are part and parcel
By the' answer of the local branch and its officers, it appears that the fund has been garnished in their hands, and that such proceedings are still pending and undetermined. Certainly, the court would not make an order for the payment of this fund into the hands of the receiver until the questions arising under the garnishment proceedings are determined. The plaintiff in that case has a right to hi-s day in court before he can be deprived of the fund, or before the local branch and its officers are bound to pay it over to the receiver. The plaintiff in the garnishment proceedings is not a party here, and his rights cannot be here litigated. If he has obtained a valid lien on the fund, that lien is not dissolved by the filing of a bill and the appointment of a receiver, but may be enforced. Hubbard v. Bank, 7 Metc. 340; Taylor v. Insurance Co.,
“It is also equally well settled that, in a proceeding to-punish for contempt of court, the question of the title to the property cannot arise or be adjudicated. The court will not in such a proceeding do more than pass upon the. bare question of contempt. It will not directly or indirectly assume to consider or to decide to whom the property belongs, or to decide that the receiver has or has not the-right of possession in and to it.”
The court below offered to permit the receiver to bring suit for these assets, which offer was declined. We think the court, under the facts stated in the answer of the local branch and its officers, properly refused to adjudge the-parties guilty of contempt. We may remark, however, that,, if the assets are finally paid into the hands of the receiver,, it will be the duty of the court to direct that, upon their ¡Dayment over to the Indiana receiver, the Michigan claimants shall receive a proportionate dividend with creditors, elsewhere.
The writ will be denied.