131 Ill. App. 617 | Ill. App. Ct. | 1907
delivered the opinion of the court.
We have no jurisdiction to entertain this appeal. It was allowed by the Superior Court upon the “defendants filing a bond in the sum of forty thousand dollars within thirty days.” A bond has been filed, but it is not made nor entered into nor executed by any of the defendants. It purports to be made and to be executed by an unincorporated voluntary association. It recites that this voluntary association, the “Merchants Underwriters at Indemnity Exchange,” has prayed the appeal, whereas the record shows it was prayed by and allowed to the defendants. Idone of these have joined in nor perfected their appeal as required by order of the Superior Court. In the Encyclopaedia of Pleading and Practice, Vol. 22, p. 230, Article “Unincorporated Societies,” it is said: “An unincorporated society or company is in its fundamental characteristics merely a large partnership, so far as its rights and liabilities are concerned, and at common law in an action by an unincorporated society or company the same rule applies as in actions by partnerships. Such society cannot maintain an action in the name of the society or of its agents or trustees, but must sue in the name of all of the members composing it, however numerous they may be. The members of unincorporated associations are entitled as individuals having a common interest to sue in regard to matters pertaining to or affecting their interests.” In O’Connell v. Lamb, 63 Ill. App. 652-656, it is said: “The declaration shows that the obligee named in the bond is an unincorporated society composed of many persons, of whom a few bring this action at law on the bond in their own names for the use of all the members. By the rule at common law this is forbidden. It can be maintained only in the names of all, however numerous. There is no authority, so far as we are advised, for supposing that it has been abrogated or modified in this State,” citing cases noted in 1st Ed. of A. & E. Encyc. of Law, Vol. 22, 806-7, and Phipps v. Jones, 20 Pa. St. 260-263; 59 Am. Decisions, 711.
An appeal, whether at law or in chancery, can only be prosecuted by the party or parties praying it, and upon compliance with the statutory requirements. It is a statutory, not a common law right. While this is a suit in equity and it may be that the defendants who are sued as representing all the subscribers were entitled to prosecute the appeal, they have not done so. The answer to the bill is “the joint and several answer” of the defendants named, and does not purport to be the answer of “The Merchants Underwriters at Indemnity-Exchange, ” of which the answer states the complainant “became a member or subscriber,” when he entered into the agreement mentioned in the bill. And yet it is this unincorporated voluntary association alone which undertakes to perfect an appeal from a judgment in which it is not a party defendant, and which executes the appeal bond as if it was a corporation. It is true that the decree, while finding that the Merchants Underwriters at the Indemnity Exchange is an unincorporated voluntary association, and that its subscribers consist of more than five hundred persons, orders, adjudges and decrees that the complainant “recover of and from the said defendant association the sum of $32,512.50,” with costs. The decree further directs, however, that this money be paid by individual defendants named, “out of funds in their hands belonging to the said subscribers.” Except as thus referred to in the decree, we do not find the association named or referred to as a defendant in the record, and, as a matter of fact, it is individual subscribers who are made defendants, and it is money of the subscribers which the decree disposes of. None of these attempts to appeal, and no one else can. Even if the unincorporated association, as such, could be deemed one of the defendants who joined in the appeal, it would still be necessary that all the defendants who joined in the appeal and to whom it was allowed should join in perfecting it, in order to give this court jurisdiction.
We have no jurisdiction to entertain an appeal except in accordance with the provisions of the statute. These require the party praying an appeal to give within the time limited by the court, and file in the office of the clerk of the court from which the appeal is prayed, a bond in the amount fixed by the court, with sufficient security. Practice Act, R. S., Chap. 110, Sec. 68. As said in Hauger v. Gage, 168 Ill. 365-368: “The correct practice would have been for defendants in error to enter a formal motion to dismiss the writ (appeal) on this ground; but the court may properly enter that order upon the argument made on the merits of the case. We" cannot be required, upon the state of the record indicated, to go through the idle ceremony of passing upon the errors assigned.”
The appeal must be dismissed.
Appeal dismissed: