146 Ind. 639 | Ind. | 1897
The appellee, by its complaint, alleges that it is a corporation organized pursuant to the laws of Indiana and a charter issued by the Supreme Lodge, Knights of Pythias of the World, and that the appellant is a subordinate lodge of this order, deriving its powers from and subject to the jurisdiction of the grand and supreme lodges. That appellant is duly incorporated under the laws of Indiana, and its co-appellants are its officers and trustees. The complaint then proceeds to describe the objects of the order and the character of its organization, and the control of the appellee over subordinate lodges, and the power which it has to suspend or dissolve the
By other averments it is shown that at the time of the alleged dissolution and disbandment of appellant, it had in its custody and charge belonging to the widows and orphans7 fund the sum of $1,000.00, and also other property of the probable value of $2,000.00 and over. It is then alleged that the officers and members of Koerner Lodge have organized, or attempted to organize, another society, and that its officers and trustees intend to turn over the money and property mentioned in the complaint to this new society.
The prayer of the complaint in substance is for a decree requiring the defendants, now appellants, to surrender to the appellee all of said property, effects and money, and that the latter have judgment for the amount thereof, and that appellants and each of them be restrained from transferring or disposing of said money and other property, and that on final hearing they be enjoined from withholding the same from the appellee, etc.
At the commencement of the action the lower court issued a restraining order as prayed, to continue in force until the final hearing.
Appellant having unsuccessfully demurred to the complaint, filed its answer in two paragraphs, the first being a denial. The second set up facts tending to negative some of the material allegations of the complaint. A demurrer was sustained to this paragraph of the answer, and the issues were then joined under the denial. A trial by the court resulted in a finding and judgment for appellee as against all of the appellants. Upon the evidence the court made the follow
There is a further -finding that Koerner Lodge has not been resuscitated, and under the constitution and laws of the Order of Knights of Pythias its property now belongs to the appellee, to be disposed of by it in accordance with its constitution and laws.
Appellants filed separate motions for a new trial, assigning among other reasons that the finding is not sustained by sufficient evidence, and that the court erred in excluding certain evidence. Each of these was overruled and exceptions reserved. The errors assigned in this court are predicated upon the rulings of the court on the demurrers to the complaint and answer and in overruling the several motions for a new trial.
Appellants’ learned counsel contend that the court erred in sustaining the demurrer to.the second paragraph of answer, and in their very able argument upon this question urge that even if it be conceded that Koerner Lodge has been dissolved, as alleged in
Appellants also insist that the evidence does not sustain either the allegations of the complaint or the finding of the court. The complaint proceeds upon the theory that appellant, Koerner Lodge, on September 10, 1894, by its own action dissolved and disbanded, and by reason thereof, under the laws, rules and regulations of the Order of Knights of Pythias, and especially by virtue of the constitution of appellee, the latter became the owner in trust and entitled to the possession of the money and property held by the former at the time of its alleged dissolution.
In Cummings v. Citizens’ etc., Assn., 142 Ind. 600, in considering the theory of a case, we said: “This theory, the complaint must outline, the evidence sustain, and the law support.” The question, therefore, as to the right or title of appellee to the money and property, as presented by the theory of its complaint, must ultimately depend upon whether the evidence sustains the alleged dissolution of appellant as a subordinate lodge. The constitution, laws and rules of the grand lodge, as exhibited in the complaint, do not show that appellee can acquire any right to the possession of the money and other property of a subordinate lodge until it in fact has been dissolved or suspended. Therefore, if the evidence, under the law, does not sustain the alleged dissolution of Koerner lodge,
' “Sec. 3. When a lodge is suspended or dissolved it shall be the duty of its last chancellor commander and all other officers to deliver up its dispensation or charter, books, jewels, funds, emblems, regalia and all other property and effects, together with a list of all
“Sec. 4. Any lodge may voluntarily surrender its charter by a vote of the lodge, provided there are less than seven members who are willing to continue.
“Sec. 5. All funds and effects received by the grand lodge from a dissolved or suspended subordinate lodge, shall be held by the grand lodge for a period of one year, and in case said subordinate lodge shall be reinstated within one year, said funds and effects shall be restored to said subordinate lodge, on payment by said subordinate lodge of the actual expenses incurred in obtaining possession, shipment, care and custody of said effects. And in case such subordinate lodge shall not be reinstated within one year after its dissolution, then the grand lodge may sell and dispose of the effects of said subordinate lodge, and all money and effects received from such lodge shall become the absolute property of the grand lodge.
“Article 1, Sec. 24. All lodges working under a charter of this grand lodge shall enforce a strict adherence to the work of the order according to the forms furnished by the Supreme Lodge, Knights of Pythias of the World, and the Grand Lodge of Indiana; and they shall neither adopt nor use any other .charges, lectures, rank work, form of installation ceremonies, nor regalia or jewels than those prescribed by the ritual and law of the supreme lodge and provided by the grand lodge.”
A rule of the supreme lodge, adopted in 1872, which is also incorporated into, the constitution of appellee, provides as follows:
There are other laws of the grand lodge in evidence providing that no subordinate lodge shall be less than seven members, and that seven members present at a meeting shall constitute a quorum for the transaction of business.
On September 8,1894, the keeper of the records and seal of appellant mailed to each of the members thereof a postal card, notifying him to be present at the lodge hall on Monday evening, September 10, 1894, stating therein as follows: “To consider a question on which the existence of the lodge depends. If you have any interest in the welfare of the lodge you certainly will be present.”
On September 10, 1894, it appears that appellant was composed of 160 members,'and at a regular meeting, held on the night of that date, at its hall in the city of Indianapolis, at which about sixty members were present, a certain resolution relative to the lodge severing its connection with the order was by those present unanimously adopted. It is apparent from the recitals in the preamble to this resolution that the members present on this occasion were indignant and felt aggrieved by reason of the aetion of the supreme lodge and the report of the supreme chancellor relative to German lodges of the order. The following is the resolution adopted at this meeting:
“Resolved. 1st. That Koerner Lodge No. 6 sever connection with the Order of Knights of Pythias. ,
“2d. That we do not impair the right of our members belonging to the endowment rank.
Albert R. Holland, a witness in behalf of appellee, testified in substance that he was janitor of the hall and was acting as outer guard at the meeting in question, and that after the lodge had adjourned some three or four of the members came out of the hall and said to him, “We have quit, we give up,” and one of them handed to him the lodge’s charter and told him to give it to Mr. Bowers, who was then the keeper of the records and seal of the grand lodge; that the charter had been hanging in the lodge room before it was taken down by some one and turned over to him; that he pnt it in one of the rooms connected with the hall and reported to Mr. Bowers, and “after a day or so,” at the request of the latter, witness delivered the charter to Bowers the grand keeper of records and seal. The latter testified that on Wednesday after the meeting, being September 12, he went to the lodge room of the appellant, that the charter at that time was in the ante-room, and that he directed Holland, the janitor, to bring it to his office, which he did, and that it has remained there since that time; that when Schmidt, a member of the lodge, demanded possession of it he declined to comply with the demand. This, in the main, was all the evidence introduced by appellee tending to show the dissolution of Koerner lodge and the surrender of its charter.
To rebut the evidence of appellee upon the point that the charter had been surrendered, appellant introduced seven witnesses, who were members and present at the meeting on September 10, to-wit: William Brandt, the chancellor commander; John Weber, the vice chancellor; August WToerner, master of finance; Henry Zimmer, Gustav Pink, Charles Pink, Charles J. Schmidt and Michael Speer.
' There was evidence introduced tending to show that the minutes of proceedings had at a lodge meeting were usually read for approval at the next meeting, and that those of September 10, 1894, were not read or approved at that meeting, but were read for the first time on September 24.
The contention of counsel for appellant, in the lower
“The undersigned, members of Koerner Lodge No. 6, Knights of Pythias of Indiana, who were not present at the meeting of said lodge on Monday night, September 10,1894, hereby protest against the action taken by the members of said Koerner Lodge No. 6 on said evening, whereby they resolved to sever the connection of said lodge with the Order of Knights of Pythias.
1. Fred Raseman. 6. Geo. Schoppenhorst.
2. William Rathort. 7. Wole Morris.
3. John Koeppen. 8. Abraham Marx.
4. Chas. Albrecht. 9. Gottlíeb Dippel.
5. Henry Miller. 10. Wi, Sogemeier.
11. Henry Schaub.”
All of the above evidence offered by the appellants was, over their exceptions, excluded by the court, and the court also refused to permit the appellant to introduce the record of a meeting of October 1,1894, which was held on the regular night and at the regular place, of meeting.
If, under the evidence given, it can be said that before the commencement of this suit Koerner lodge had dissolved and surrendered its charter, and ceased to longer exist as a working lodge* this result must be attributed solely to the action of the minority of its membership in adopting the resolutions on September 10, 1894. In the absence of this certainly it can not be asserted that there is other evidence sufficient to show that the lodge as a body had invested Holland, the janitor, with authority to - surrender its-charter, or that Bowers, in his official capacity, had
There is no claim that appellant had been dissolved by virtue of any action or proceedings had by the grand lodge in accordance with its constitution or other canons of the order prior to the beginning of this suit, but the adoption of the resolution is relied upon as ipso facto effecting a dissolution of Koerner lodge, and thereby giving the former, under its constitution, the right to the possession of its property, regardless of any subsequent action of the lodge, or of nine or more of its members in opposition to the alleged dissolution.
• The authorities affirm that a beneficial association may be dissolved in the manner provided in its charter
We are of the opinion that the subsequent action of the Koerner lodge, at the meeting of September 24, as offered to be shown by the appellant, was, under the circumstances, proper and legitimate.
It appeared that the minutes of the meeting of September 10 were first read and presented for approval at the meeting on September 24, and the offer was to show that certain corrections in regard to the proceedings had at the former meeting were then made. The meeting of September 24 seems to have been the first opportunity for the lodge to avail itself of the right to correct the record of the former meeting so as to make i1 conform to what had actually occurred. Again, it appears that this meeting was also the first opportunity which the eleven members who were absent on September 10 had to protest and object to the action of the minority of the lodge’s membership at this latter meeting.
As we have seen, the laws of the order forbid a voluntary dissolution or surrender of a lodge’s charter in the event there are nine members willing to continue the organization. The policy or purpose,of this rule manifestly is to prevent a dissolution of a subordinate lodge unless it be effected as near as practicable by unanimity upon the part of its members. If there are nine or more loyal ones, who are willing to sustain their organization as a lodge, and continue its existence and operations in obedience to the rules, regulations and laws of the order, then a voluntary dissolution of the lodge, as such, cannot result., even though it be the will and desire of a large majority of its members, except by the permission of the grand
The stockholders of a corporation which is chartered or organized under the laws of a State, as a general rule, cannot effect a voluntary dissolution except by a unanimous vote. Beach on Private Corporations, Vol. 2, section 781; Cook on Stockholders and Corporation Law, section 629.
That part of the resolution which declared in favor of turning appellants’ property over to the German Mutual, etc., Society was ultra vires, and would not
We are of opinion that the court erred in excluding the evidence herein indicated as offered by the appellant, and the final judgment is therefore reversed, and the cause remanded, with instructions to the lower court to grant appellants each a new trial, and for further proceedings in accordance with this opinion, the restraining order to remain in force until the further order of the lower court.