Webb & Martin v. Anderson-McGriff Hardware Co.

• Decision Date: 14 June 1939
• Docket Number: 12747.
• Citation: 3 S.E.2d 882,188 Ga. 291
• Court: Georgia Supreme Court
• Parties: WEBB & MARTIN, Inc., v. ANDERSON-McGRIFF HARDWARE CO. et al.

3 S.E.2d 882

188 Ga. 291

WEBB & MARTIN, Inc., v. ANDERSON-McGRIFF HARDWARE CO. et al.

No. 12747.

Supreme Court of Georgia

June 14, 1939

Syllabus by the Court.

1. The motion to dismiss the writ of error for (1) failure to more specifically designate defendants in error, (2) failure to specify certain parties as defendants in error, and (3) failure to name certain other defendants who were not served in the court below as defendants in error, is overruled.

2. A personal judgment can not be obtained against a person who is not named as a party defendant and properly served in the action. The equitable doctrine of class representation does not permit a plaintiff to designate certain parties as representatives of other numerous members of voluntary association, in order to obtain personal judgments as to members not named and property served in the action on an alleged indebtedness of the association.

3. Liability of individual members of a voluntary association was not shown by mere general allegation '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 that association disbanded it was indebted to plaintiff.'

Virlyn B. Moore, Jr., of Atlanta, for plaintiff in error.

Roy Drennan and McElreath, Scott, Duckworth & DuVall, and of Atlanta, for defendants in error.

REID Chief Justice.

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 Hardware & 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, 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 demurrer an order was entered that the case be 'dismissed as to demurrant and members of the class who have not been served.' The plaintiff filed its bill of exceptions which we now have under consideration, and assigning error on the orders entered sustaining the separate demurrers which had been filed by the following defendants named in the petition: Moncrief Furnace Company, Anderson & McGriff Hardware Company, Evans Implement Company, Almand Implement Company, Fulton Hardware Company, Buckhead Hardware Company, Campbell Hardware Co., each demurring as defendant sued individually, and Anderson-McGriff Hardware Company demurring separately as a designated class representative. The bill of exceptions in its caption designates all of these named defendants as defendants in error, with the exception of Almand Implement Company and Fulton Hardware Company. There is no other designation of any defendants in error in the bill of exceptions, except that discoverable by examining the caption, although it appears from its recitals that the demurrers of all of these named parties were sustained and the plaintiff's case as to them dismissed, and error is assigned on those rulings. Service of the bill of exceptions was acknowledged by counsel for all of these named defendants, including the two omitted from the caption. Motion is made to dismiss the writ of error, for the reasons that no defendants in error are properly named in the bill of exceptions, and that the two defendants named, and also certain other defendants, were not named as defendants in error or otherwise made parties to the bill of exceptions. It appears that the other defendants named in the petition, but not named in the bill of exceptions, were those who did not appear to have been served, and who, so far as appeared in the record at the time of the rulings complained of, had filed no pleadings in the case.

1. 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.

Another ground of the motion to dismiss rests on the contention that certain parties to the case, interested in sustaining the judgment, were not made defendants in error. It appears that this contention refers to the absence from, the record of those defendants named in the suit who, at the time of the rulings complained of, had not been served with process and had not appeared and filed pleadings or otherwise waived process. 'A person named in the record as a party is not in fact a party to the action unless he has been duly brought in by legal process or has voluntarily appeared and submitted himself to the jurisdiction of the court.' 47 C.J. 15. 'The court has no jurisdiction of the defendant until after service of process; and accordingly it was held in the case of McClendon & Co. v. Hernando Phosphate Co., 100 Ga. 219, 28 S.E. 152, that, while the suit commences when the petition is filed, it is not a 'pending suit' between the parties until after service of process.' Florida Central & P. R. Co. v. Ragan, 104 Ga. 353, 356, 30 S.E. 745, 746. It follows that this ground of the motion is also without merit.

2. 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. 43, 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 to be sued in the common name under which the members became bound in association; and we find many cases and treatises dealing with these various methods. Also we find that many States have provided, by varying types of statutes, different plans for bringing within reach of process these associations and their members. In the instant case the plaintiff relies upon Gate City Cotton Mills v. Alexander, 143 Ga. 42, 84 S.E. 118 as establishing the right to proceed as it has undertaken to do. In that case Alexander, an attorney, alleged that he had made a contract for performance of certain services for the benefit of a voluntary unincorporated association and its members; that the members, with the exception of the defendants named, were unknown to him and could not be named and served with process. He alleged that he made his contract, with the three members named and sued, and upon whom process was served. His was an action at law, and sought...