188 Ga. 291 | Ga. | 1939
Lead Opinion
Webb & .Martin Inc. filed suit in the superior court of Fulton .County against Southeastern Retail Hardware and Implement Association and certain named companies and individuals alleged, to be engaged, in the-hardware business, and sought to obtain a judgment for $467.60 on open account. The petition was- filed, in equity, and alleged that these named defendants and several hundred others were members of Southeastern ,í¡ . • ■ Hardware and Implement Association, a voluntary unincorporated association; that the various members were scattered throughout the southeastern states; that an indebtedness represented'by the open account was incurred.by the association; and that the association had dissolved,1;, .and was insolvent. The plaintiff thus sought to make liable for the debt its various members. -It was alleged that the names of the members other than those named in the petition were unknown to the plaintiff; and that, although all the members of this association were jointly liable to plaintiff, relief at law could not be had because these other members could not be located, named, or served with process. The petition- contained prayers for the designation of different named defendants to be served personally where residents of Georgia, and by publication where non-residents, and to represent all of the members of their respective class ,in the action against them, .and that plaintiff have judgment in the sum sued for against the named defendants “individually and as members of said association,” and' against those designated to represent classes individually and “as representative of all of the members of' said association,” in their respective classes.
The judge sanctioned the petition and entered orders designating class representatives, as prayed. The association and certain of the named defendants who had been served .filed their general demurrers to the petition, and they were sustained by the judge, and on 'each demurrér an order was entered "that the case be “dismissed as to
The motion to. dismiss, so far as predicated on failure to name and- specify defendants, in error except as disclosed from the caption, is denied, since they are ascertainable from the caption and the record; Code, § 6-1309; Carter v. Parrish, 154 Ga. 531 (1-b) (114 S. E. 709). In so far as the motion to dismiss is based on- the failure in the bill of exceptions to specify, either in the caption or otherwise, the names of two particular defendants as defendants in error,-it must-also be .denied. The names were supplied by amendment, and acknowledgment of service for those named defendants had already been made on the bill of- exceptions. Code, §§ 6-912, 6-913.
Ordinarily it is required that in an action on contract all persons jointly liable under the contract be made defendants. Dickenson v. Hawes, 32 Ga. App. 173 (122 S. E. 811). And the fact that the joint contractors are members of a voluntary unincorporated association for whose benefit the contract was made does not alter this rule. 5 C. J. 1369. Gate City Cotton Mills v. Alexander, 143 Ga. 42 (84 S. E. 118). See other cases cited in Dickenson v. Hawes, supra. It is noted from the statement of facts appearing above that the plaintiff in the present action, on account of the fact that the persons alleged to be liable were numerous and unknown, sought the aid of equity to secure a judgment for its debt, not against the association as such nor alone against the named defendants, but also, through the appointment and service on certain members as class representatives, to obtain judgment against the others not named. To deal with situations complicated by transactions with voluntary associations, societies, and the like, where members were numerous and widely scattered, equity early invented methods by recognition of rights to sue and sometimes be sued in the common name under which the members became bound in associationand we find many cases and treatises dealing with these various methods. Also we find that many States have pro
Class representation among parties for the adjudication of rights is a peculiar creature of equity, and we find the equitable principle in recognition of it in our Code, § 37-1002, as follows: “Members of a numerous class may be represented by a few of the class in litigation which affects the interest of all.” This section appeared first in the Code of 1895, § 4842. The codifiers cited Macon & Birmingham Railroad Co. v. Gibson, 85 Ga. 23 (11 S. E. 442, 21 Am. St. R. 135). It is a principle well recognized by all the courts, and frequently resorted to as an aid to securing justice, preventing hardship, inconvenience, and injustice. It is also, true that this rule applies alike to plaintiffs and defendants in equitable cases. See Grand Chapter Order Eastern Star v. Wolfe, 172 Ga. 346, 351 (157 S. E. 301); Clark Milling Co. v. Simmons, 155 Ga. 505 (117 S. E. 437); O’Jay Spread Co. v. Hicks, 185 Ga. 507 (195 S. E. 564). Eor special application of this doctrine of virtual representation to voluntary unincorpofated associations an(í their members, see 25 R. C. L. 74, § 31; Reynolds v. Davis, 198 Mass. 294 (84 N. E. 457, 17 L. R. A. (N. S.) 162). In Hood Brick Co. v. Mangham, 161 Ga. 457, 459 (131 S. E. 172), Presiding Justice Beck stated the rule as follows: “In an equitable suit he can be served for certain purposes by publication, but such service does not confer jurisdiction upon the court to render a judgment in personam
In 33 Corpus Juris, 1083, § 45, the rule is stated in the following language, which it will be noted would be applicable, as are our own cases on the subject, to local defendants not appearing or served as likewise to all non-residents: “But a personal judgment upon merely constructive service is not entitled to full faith and credit in the courts of another State, under the constitutional provision in that regard, and the weight of authority is to the effect that no valid personal judgment can be tendered against a defendant upon whom the service of process was merely constructive, and who did not appear. A fortiori a non-resident is not bound by such a judgment. In the case of proceedings in rem or quasi in rem the judgment may bind the property affected, without personal service on any party, constructive notice, by publication or otherwise, being sufficient for this purpose; but no valid personal judgment or decree can be made in such proceedings without personal service or an appearance.” See also Peeples v. Mullins, 176 Ga. 743 (168 S. E. 785); Irons v. American National Bank, 175 Ga. 552, 557 (165 S. E. 738), and cit. Walker v. Grand International
But if a case at law was stated against those defendants named and served, it was error to sustain the general demurrers as to them; and this calls for further examination. The petition alleged, “that the defendants are indebted jointly-and severally to the plaintiff” in the sum sued for, upon open account; that the association had contracted with the plaintiff’ for certain printing jobs to be done from time to time within the past four years, and that at the time this association disbanded it was indebted to the plaintiff in the sum sued for. The purpose for which the association was formed does not appear from the petition, nor is it alleged that the named defendants contracted with the plaintiff or authorized, ratified, or assented to the contract. It will be noted that in the Gate City Cotton Mills case, supra,' the plaintiff alleged that his contract was made with the defendants named in his suit and against whom he sought his judgment.' The rule as to liability of members of a voluntary unincorporated association is stated in 4 Am. -Jur. 481, § 41, as follows :• “It is. the well-settled general rule that individual members of -an unincorporated-association are liable for ’ contracts made in 'the mame of the association by an authorized officer, agent;''committee, etc.,, and are'responsible for all indebtedness incurred'in-the business for which it was organized, without-.regard to the-question whether--they so intended or so undér
In some instances the question of liability of association members is made to depend upon principles of agency, and in some on principles of partnership; but in either event, it seems- clear that -before any' recovery for debt of the association could be had as against the-individual members, authority ip some one to incur it should be shown,' or it should be made to appear that it -was incurred for some purpose within the objects of the association. Many jurisdictions apply one rule of liability as to members of an association 'organized for profit, and anothér to members' of ñon
We take the view that the petition did not contain sufficient facts to charge liability, and the judgment of the trial court is accordingly Affirmed.
Concurrence Opinion
who concurs in the judgment and what- is said in divisions 2 and 3 of the opinion, but is of the opinion that since the judgment is affirmed the motion to dismiss should not be passed on.