147 So. 479 | Miss. | 1933
This is an attachment in chancery under section 173, *668 Code 1930, and the appeal is from a decree quashing the process and dismissing the bill.
The bill of complaint was filed against A.F. Whitney, a nonresident, for the purpose of recovering damages alleged to have been sustained by the appellant because of the publication by Whitney of an alleged libel against the appellant. The Brotherhood of Railroad Trainmen is alleged to be indebted to Whitney, and the prayer of the bill is that this alleged indebtedness be subjected to the payment of appellant's demand against Whitney.
The Brotherhood of Railroad Trainmen is an unincorporated labor union operating "throughout the entire United States" on the lodge system with a representative form of government. One of its subordinate lodges is located at Jackson, Mississippi, of which the appellant is a member. Summons for the Brotherhood of Railroad Trainmen was served on J.E. Pierce, secretary and treasurer of the brotherhood's subordinate lodge at Jackson, Mississippi. Pierce filed a motion to quash the process and dismiss the suit, the grounds of which are:
1. "The original bill of the complainant shows that both the defendants are one and the same person."
2. "The court has no jurisdiction over the defendant, Brotherhood of Railroad Trainmen, as a garnishee or otherwise."
3. "This court has no jurisdiction over this cause of action."
This motion was quashed and the bill dismissed. Pierce's right to file this motion is not challenged, in which connection see Gullett v. First Christian Church,
The grounds on which counsel for the appellee say that the motion was properly sustained are that: (1) The Brotherhood of Railroad Trainmen being an unincorporated association is not suable in its own name; (2) the appellant being a member of the brotherhood is, for the purposes of this suit, identical with it, and therefore, *669 in effect, is attempting to sue himself; (3) the relations between Whitney and the brotherhood are such that both are liable for damages, if any, sustained by the appellee because of the publication of the alleged libel, and therefore the brotherhood could be sued only, if at all, as a principal defendant and not as garnishee; and (4) the appellant's claim for damages is barred by the statute of limitations.
The second, third, and fourth of these grounds do not here arise, and can be presented only in a proper pleading or objection by one or both of the defendants to the bill. The only question that Pierce can here raise is the suability vel non of the Brotherhood of Railroad Trainmen, of which he is a member.
In consonance with other courts, this court has repeatedly held that, at common law, an unincorporated association is not suable in its own name, consequently this association is not so suable, unless that rule has been changed by statutes, either expressly or by necessary implication.
In many, if not all, respects this brotherhood is an association of the kind and character of the United Mine Workers of America, which was held suable in its own name by the Supreme Court of the United States in United Mine Workers of America v. Coronado Coal Co.,
Various rights are given to, and liabilities imposed on, them by other sections, referred to above, for the protection and enforcement of which resort to the courts is necessary.
It may be true that the main purpose of these sections is to bring these associations issuing benefit certificates to its members under the supervision of the State Insurance Department, and to regulate the issuance and payment of these certificates. These sections unquestionably permit suits on benefit certificates issued by these associations. Clark v. Grand Lodge of Brotherhood of R.R. Trainmen, 328 Mo. 1084,
It has been suggested that if the Brotherhood of Railroad *671 Trainmen is suable, Pierce is not a proper person on whom to serve process for it. We are not here concerned with, and express no opinion on, that question. Pierce, because of his membership in, and the service of process on him for, the brotherhood, has the right to here have the suability vel non of the brotherhood judicially determined. Gullett v. First Christian Church, supra.
Reversed and remanded.