163 Ga. 857 | Ga. | 1927
The plaintiff brought a petition for injunction. Upon the hearing the injunction was refused, and the case was brought to this court by writ of error. This court then held: “The petition alleged ground for injunctive relief to prevent the defendants from interfering with the plaintiff in the conduct of the business of the corporation and the management and control of its property. The uncontradicted evidence was sufficient to support the allegations relative to such relief, and the judgment refusing such relief was error.” Free Gift Lodge No. 25 Brothers and Sisters of Benevolence v. Edwards, 161 Ga. 832 (132 S. E. 206). Except as hereinafter set forth, the petition and amendments thereto, as well as the demurrers and answers of the defendants, are fully set out in the statement of facts in the prior case and need not be repeated. When the case was called for, trial on March 15, 1926, the remittitur had been received by the court below, and the judgment of the Supreme Court was entered by the trial judge as the judgment of Putnam superior court. Thereupon the plaintiff filed a petition setting forth the decision of this court, and praying that the trial judge grant the injunction prayed for in the original suit, “and as ordered by said Supreme Court of Georgia.” Upon this petition the judge passed an order holding “That the effect of the decision of the Supreme Court amounts to the grant of a new trial, and that under that view of the case, either the plaintiff or the defendants would have a right to offer additional evidence if they desire, and for that reason I refuse to grant the injunction at this time, and I refuse to put the restraining order in force now,” and fixed April 9, 1926, as the date for a hearing on said case. The plaintiff filed exceptions pendente lite, assigning error on this order. On March 15, 1926, the defendants filed an amendment to their answer, in which they alleged that “The said case is proceeding in the name of ‘Free Gift Society Brothers and Sisters of Benevolence, No. 25/ and that there is not now, and was not at the commencement of this action, any such corporation as that named as plaintiff in the petition. Defendants aver that plaintiff is not a de facto corporation, nor did the persons claiming to compose the alleged corporation, at-the commencement of this action, or at any of the times named in plaintiffs’ petition, claim in good faith to be a corporation,” and prayed that said action be dismissed. The plaintiff moved to strike this amend
Upon the hearing on April 9, 1926, the court postponed ruling on1 the motion to dismiss the petition on the ground that there was no proper party plaintiff, until after a consideration and hearing of the application for injunction and receiver, stating that he would pass upon the motion to dismiss at the time of rendering his decision in the case. Both parties introduced testimony to support the contentions of their respective pleas. The trial judge took the case under advisement, and on May 7, 1926, signed an order dismissing the petition on the ground that it appeared from the pleading and from the evidence introduced that Free Gift Lodge No. 25 Brothers and Sisters of Benevolence had never been incorporated, but said lodge was only a branch society of the Brothers and Sisters of Benevolence, and therefore there is really no party plaintiff, and the suit should be dismissed under the decisions of this court; and for this reason refused to grant a restraining order and appoint a receiver. While the order of the
The dismissal of the petition upon the ground that there was no party plaintiff to this action, in that Free Gift Lodge No. 25 Brothers and Sisters of Benevolence was not a corporation, raises the controlling question in the case; for if this decision is correct, the alleged plaintiff can not complain of the rulings of the court prior to the dismissal. The present action arises out of and is based upon disagreements among the members of Free Gift Lodge No. 25, and involves the question as to who is entitled to the custody of the property of the lodge and entitled to conduct its business. The Brothers and Sisters of Benevolence, a corporation chartered by the superior court of Putnam Countjq is not a party to the action. While an amendment to the plaintiff’s petition names certain members of the Free Gift lodge as parties plaintiff as individuals, and a list of names alleged to be those members of the lodge in good standing is attached to the petition, only
The plaintiff insists that the defendants are estopped to deny the corporate existence of the Free Gift Society No. 25, because the defendants admitted such corporate existence in their sworn answer, and litigated with plaintiff as such in the superior court and this court in this action. It is also insisted that by the former decision of this case it is judicially settled that the action is proceeding with proper parties, and that the plaintiff is a corporation. It is strenuously argued that even if Free Gift Society is not a corporation de jure, it is at least one de facto. In considering the contention that the defendants are estopped by reason of the admission in their sworn answer, it becomes necessary to consider a portion of the petition and the paragraphs of the answer replying thereto. The petition begins: “The petition of Free Gift Society Brothers and Sisters of Benevolence, No. 25, shows: (1) That petitioners are a corporation under the laws of the State of Georgia, with its domicile in said county. (2) Petitioner shows that said corporation is the mother society, and th'at Free Gift Lodge No. 25 is one of the branches or subordinates.” Paragraph (3) names the defendants. “ (4) That a copy, of the charter of said corporation is hereto attached, and made a part of this petition. (5) That a copy of the constitution and by-laws of said corporation is hereto attached, and made a part of this petition. (6) That Gus Davis is the president of Free Gift Lodge No. 25, and that J. F. Cartwright is secretary of said Free Gift Lodge No. 25; and petitioner shows that said Cartwright has been secretary of said lodge for seven or eight years. (7) Petitioner shows that said Free Gift Lodge No. 25 is the owner of a seal of the corporation. . . ” The defendants demurred to the petition generally and specially, the only ground of demurrer now necessary to state being “That it does not clearly appear in and from said petition whether the same is brought by Brothers and Sisters of Benevolence or by Free Gift Lodge No. 25.” In answer to paragraphs one and two .of the petition, “defendants admit that Brothers and Sisters of Benevolence is a corporation, and the Free Gift Lodge No. 25 is a subordinate lodge thereof. But defendants deny that the bringing of this action was authorized by either the said corporation or the said lodge, but allege that it is the individual act of Gus Davis,
The plaintiff contends that under the charter granted to the mother society (Brothers and Sisters of- Benevolence) by the superior court of Putnam County, which gave such mother society authority to establish branches or subordinate lodges, and further provided that such branch societies should have, “when so established, for themselves respectively the same rights, privileges, and
The power to create corporations resides in the State. Brown
Under the facts of this case, it can not be seriously argued that Free Gift Society No. 25 is a de facto corporation. The parties composing this branch society have not even attempted to organize as a corporation under any law by which such corporation might legally exist. In the sense necessary to constitute a de
A proceeding in law without a proper party plaintiff is not an action but a mere nullity, and may be dismissed at any time on motion. W. & A. R. Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978), and cit. As it was apparent from the pleadings that there was no real ¡Darty plaintiff, a motion to dismiss based upon this ground could be made at any time (Kelly v. Strouse, 116 Ga. 872), and the court did not err in sustaining such motion. See Walker v. East Rome, 145 Ga. 294, 297 (89 S. E. 204). It is therefore unnecessary to consider any of the remaining assignments of error. Having held that there is no party plaintiff, and that the defendants could so assert, it follows that the plaintiff named in the present bill of exceptions is not entitled to complain of any prior ruling of the court. It is not necessary to consider the intimation in the brief that the proceeding was perhaps brought in behalf of others than Free Gift Society No. 25 in its alleged corporate capacity. It is sufficient to say that “Free Gift Society No. 25 Brothers and Sisters of Benevolence” is the sole plaintiff in the present bill of exceptions.
Judgment affirmed.