27 Ill. 421 | Ill. | 1862
It is hardly necessary to examine in detail, the several errors assigned on this record. The conclusion we have arrived at, is, that under the statute of 1849, the suit is not properly brought. The act of February 8, 1849, entitled “ An act for the incorporation of the Grand Lodge of the State of Illinois, of the Independent Order of Odd Fellows, and the subordinate lodges thereunto belonging,” by the first section, declares the persons therein named and their successors to be a community, corporation and body politic by the name and style of “ The Grand Lodge of the State of Illinois, of the Independent Order of Odd Fellows,” and by that name to have perpetual succession. The second section provides that the said corporation and their successors, “ by the name, style and title aforesaid,” shall be capable to sue and be sued, etc. By the fourth section, the subordinate lodges instituted by this corporation, by the name and number of their respective lodges of the Independent Order of Odd Fellows in this State, are declared to be a community, corporation and body politic, capable for all time to take and hold property, real and personal, and of disposing of it in such manner as they think proper. The fifth section provides “ that each of the subordinate lodges which now are or may be hereafter instituted, by the aforesaid corporation (the Grand Lodge), shall elect or appoint annually, five trustees, whose certificate of election tion shall be recorded in the office of the recorder in the county in which the subordinate lodges are situate,” and “ the said trustees and their successors shall be forever thereafter capable in law to sue and be sued, plead and be impleaded, answer and be answered unto, defend and be defended, in all or any courts of justice, and before all and every judge, officers or persons whatsoever, in all and singular actions, matters or demands whatsoever.” The sixth section gives each of them a common seal, and in general to have and exercise “ all such fights, privileges and immunities as by law are incident or necessary to corporations, and what may be necessary to the corporations herein constituted.” (Session Laws, 1849, special acts, p. 46, 47.)
This act is the charter of all the subordinate lodges of this order, and the proof shows an organization in fact and user under it, and this is sufficient, in this collateral action, to show a corporation in fact, though there may have been irregularities or omissions in the organization.
The proof shows the election of the requisite number of trustees, and the record of the fact. This is evidence sufficient under the plea of nul tiel corporation. It establishes the fact of the existence of such a lodge, No. 112, but the plea goes further, and questions the right of the lodge to sue, in the name it has sued. It is in substance, that there is no such corporation as Astoria Lodge No. 112, capable of suing in this action. The Grand Lodge can sue by express grant, in their corporate name. The subordinate lodges cannot so sue. They must sue and be sued, in the name of the trustees, and in no other mode and by no other name. A corporation can have no faculty, not given by the act creating it. The faculty of suing is a most important one, and has not been specially conferred, and since it has been directly conferred on the trustees by special grant, it cannot be claimed as incident to the corporation under the general power conferred. Had not the faculty to 'sue, been conferred on the trustees, then indeed, would this corporation have had the right to sue under the grant, in the sixth section, of all the powers incident to corporations. Metropolitan Bank v. Godfrey et al., and notes, 23 Ill. 609.
However just, and clearly established, is the defendant’s liability in this case, yet, as the suit is not brought by the parties entitled to sue as plaintiffs, we are compelled to reverse the judgment. The suit should be brought in the name of “ the Astoria Lodge No. 112, Independent Order of Odd Fellows.”
Judgment reversed.