Tucker v. . Eatough
120 S.E. 57
N.C.
1923
Check Treatment
Clark, O. J.

In the summons, the sheriff was commanded “to summon Henry Eatough and Henry Eatough as agent and organizer of and *506 representing the members of the United Textile Workers of America, an unincorporated association, defendants in the above action.” If the “United Textile Workers of America” had been a corporation the service would have been invalid, C. S., 483 (1), and the action should have been dismissed as to them by.the judge ex mero motu. As the summons recites that they are unincorporated, for a still stronger reason the summons should have been dismissed. In either event the action of the judge would have been-correct.

The United Textile Workers of America did not appear and could not for they had no legal or actual existence, and there was and could be no service on any one as to them. The demurrer by whomsoever filed was not and could not be an acknowledgment of service by any one, and the court could act ex mero motu upon the allegation of the plaintiff in the summons and in the complaint that the party attempted to be sued was unincorporated, and the return of the sheriff that there had been no service upon any one except Henry Eatough.

The complaint avers that Henry Eatough issued a printed circular that was libelous and reflected on the plaintiff, and that as he was the agent of the said unincorporated association, said association is responsible without naming any of them or service on any of them, and asks for $10,000 damages out of said Henry Eatough and said unincorporated association, and naming no one, and service being had on no one except said Henry Eatough.

It has been held by our Court that unincorporated associations cannot be sued in the manner attempted in this case, and it has been held by various other courts also that voluntary unincorporated associations have no separate legal existence; that they cannot make contracts or be sued as an association except through the individuals who compose its membership.

It has been held in some of the equity courts of this country that where some of the members of an unorganized body have been made parties that proceedings will lie against them, but this rule is .only applicable in those courts after sundry members have been made x>arties, and in this case none of the members of the alleged United Textile Workers of America have been made j>arties, and even the equitable doctrine of virtual representation adopted by the chancery courts in some other jurisdictions cannot apply.

In this State, our statute does not even go to that extent, C. S., 457, which merely j)rovides for the joinder of x>arties as follows: “When the question is one of a common or general interest of many persons, or where the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all,” but that is merely x>ermissive to them and clearly does not aqoply *507 to tbe circumstances of tbis case. Here Eatougb is sued as an individual and as agent of tbe United Textile Workers. No member of tbe union is in.court or even named as a defendant. Eatougb alone is sued, first as an individual and second as alleged “agent or organizer of tbe union,” but it is not even alleged tbat be is a member, and, on tbe contrary, tbe complaint avers tbat tbe union is composed of a large number of individuals wbo are not incorporated. It does not appear tbat any one is authorized to represent them.

In Abbott v. Hancock, 123 N. C., 99; Sullivan v. Field, 118 N. C., 358, and Winders v. Southerland, 174 N. C., 235, cited by tbe plaintiff, it was beld tbat a demurrer does not lie for superfluous parties, but tbis does not dispense witb tbe requirement tbat before a party named as defendant can be proceeded against, it must be served witb summons and possess legal capacity to be sued.

In Kerr v. Hickes, 154 N. C., 268, it is said: “A voluntary association bas no existence or power except as contained in its formal articles of agreement or established by custom acquiesced in by tbe parties to it.” Tbe complaint in tbis case shows plainly tbat tbe action was brought against tbe association, and in tbis State only natural or artificial persons can be brought into court upon summons. Tbe defendant, United Textile Workers of America, not being incorporated, is without capacity to sue or be sued, and tbe court properly dismissed tbe action ex mero motu.

In Nelson v. Relief Department, 147 N. C., 104, tbe matter is discussed fully, and tbe Court said tbat it appeared tbat tbe alleged defendant was neither incorporated nor a legal entity, adding tbat even a State department like tbe Insane Asylum, or tbe Board of Education, or the State’s Prison, though created by statute, bad no power to sue and are immune from liability to suit except when tbe statute creating them especially granted tbe permission to sue or be sued, and said tbat tbe alleged “Belief department is not a natural person. It is not a corporate body. It bas no legal entity. It is, in tbe eye of tbe law, an 'airy nothing.’ It bas no power to contract. Any contract made in its name would be tbe contract of tbe individual assuming to act for it or tbe contract of tbe railroad company whose 'agency’ it was. A judgment against tbe 'relief department’ would have nothing to act on. Tbe sheriff could find no one upon whom to levy bis execution. It would glide from bis grasp as tbe shade of Oreusa eluding tbe embrace of Eneas.

“Tenuesque recessit in auras.
Ter frustra comprensa effugit imago.
Par levibus ventis volucrique simillima somno.”
Virg. Eneid II, v. 791 et seq.

*508 It was also said in that case that there being a defect of jurisdiction, the court should have dismissed the action ex mero motu. “The position of the plaintiff was no better tjian if the summons had been served on an infant in an action on contract.”

The subject has also been discussed in Ball-Thrash v. McCormick, 162 N. C., 475; Brewer v. Abernathy, 159 N. C., 285; Kochs v. Jackson, 156 N. C., 328. In all of these cases it was held that a proper method of taking advantage of the defect in parties on the ground of incapacity to be sue,d is by a written demurrer when the defect appears on the face of the record, as is the case here, or by answer when the incapacity to be sued does not appear.

It is true that if a defendant named in a summons or an action, who has the capacity to sue or be sued, appears therein for any purpose, except where his appearance is properly restricted to the purpose for which a special appearance can be entered, his appearance cures any irregularity in the method and detail of service, and by his appearance, if he has the legal capacity to be sued, he waives the question of venue. But that is not the case here, for the reason that the demurrer is based upon the want of legal capacity to sue or be sued.

The only party in this case was Henry Eatough, and the language of the summons could not bring the United Textile Workers of America in as defendant even if that association was a legal entity.

Among other cases, in the Coronado Coal case, 259 U. S., 344, Chief Justice Taft uses the following language: “Undoubtedly at common law an unincorporated association of persons was not recognized as having any other character than a partnership in whatever was done, and it could only sue or be sued in the names of its members, and their liability had to be enforced against each member.” In the famous Taff-Vale case, in which an unincorporated labor union was held to be suable, this was placed solely upon the ground that Parliament had passed the Trade Union Act of 1871, which permitted trade unions to be registered, and gave to registered unions the power to own property and to act by agents. This is cited and explained by Judge Taft in the Coronado Coal decision, supra.

In North Carolina there is no legislation thus changing the common law, and the Legislature has not authorized, but has refused to authorize these unincorporated associations to take and hold property in their association name. In the Coronado case it is said by Chief Justice Taft: “There is no principle better settled than that an unincorporated association cannot, in the absence of a statute authorizing it, be sued in the association or company name, but all the members must be made parties, since such bodies, in the absence of statute, have no legal entity distinct from that of its members. 5 C. J., 1369; 20 R. C. L., 672, and many other cases.

*509 If an action could be brought against Eatougb, it certainly could not be served upon Eatougb alleging tbat be is agent for tbe United Textile Workers of America, but it must be served upon some officer of tbe corporation designated by statute for tbat purpose. Tbis alone would sustain tbe action of Judge Harding.

But upon tbe broader ground, if contrary to common law, an action could be brought without authority of a statute against an unincorporated body, it would be permissible for any person to bring an action against tbe Confederate Veterans Association, or tbe American Legion, or tbe League of Women Voters, or any other unorganized body upon an allegation tbat one of their members bad committed tbe libel or other legal wrong against tbe person bringing tbe action. It certainly cannot be necessary to discuss further tbe proposition tbat the United Textile Workers of America not b'eing a legal entity, and there being no statute authorizing them to be sued, tbat tbe action was properly dismissed as to them.

Tbe defendant, Eatougb, is liable for any libel tbat be may be proven to have issued, and any individuals or corporations who aided and abetted him in issuing a libel can be made parties defendant, but not an unincorporated body of men.

Affirmed.