Ahlendorf v. Barkous

• Decision Date: 14 June 1898
• Citation: 50 N.E. 887,20 Ind.App. 656
• Parties: AHLENDORF et al. v. BARKOUS et al.
• Court: Indiana Appellate Court

20 Ind.App. 656

50 N.E. 887

AHLENDORF et al.

v.BARKOUS et al.¹

Appellate Court of Indiana.

June 14, 1898.

Appeal from superior court, Lake county; John H. Gillett, Judge.

Action by Frank Barkous and others against Theodore Ahlendorf and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Johannes Kopelke, for appellants. A. F. Knotts and Lawrence P. Boyle, for appellees.

COMSTOCK, J.

Suit by appellees (plaintiffs below), who are members of Court Glueckauf No. 101, operating under the jurisdiction of the High Court of the Independent Order of Foresters of the State of Illinois, against Court Glueckauf No. 1, operating under the jurisdiction of the High Court of the Independent Order of Foresters of the State of Indiana, and the members of said court, for the possession of certain regalia, furniture, and other articles constituting the outfit of a lodge. Appellees are an unincorporated association, but the high court under whose jurisdiction they are acting is duly incorporated under the laws of the state of Illinois. The trial court rendered judgment for the appellees, and overruled appellants' motion for a new trial. This action of the court is assigned as one of the errors in this court, and is the only assignment discussed by counsel. The reason specified in the motion for a new trial is that the finding of the court is not sustained by sufficient evidence, and is contrary to law.

Appellees are, and appellants were, with a few exceptions, until the 11th day of December, 1893, members of Court Glueckauf No. 101. On that night, a majority of the members being present, a resolution was passed by said lodge No. 101 to secede from the high court of Illinois, and to join in the organization of a high court for the state of Indiana. Some of the members dissented from the proposition, but subsequently all but 10 surrendered their certificates in the old order, pursuant to a notice that such course would be necessary in order to become members of the new order. At the date of said secession, said lodge had 81 members in good standing. Forty-three were present. Twenty-seven voted. Twenty-three of these voted for secession and four against. The next meeting of the seceding members after said 11th day of December was not held in the old lodge hall, but they subsequently came back, and took possession of the Court Glueckauf lodge room and the property in controversy. On Monday following the 11th day of December, 1893, a portion of the members met at their regular meeting place, and 23 of them signed a statement, which was sent to the grand lodge of Illinois, to the effect that they would recognize their allegiance to such high court, and requested the return of their charter, which the high chief ranger of the local court had in the meantime returned to such high court. The charter was returned to them, and from thenceforward such members and the accessions to the membership have constituted the local court, and have been recognized by the high court of Illinois as Court Glueckauf No. 101.

Appellants' first proposition is that the absence of proof of any demand on the part of appellees upon appellants to give up the property in controversy must defeat a recovery. It is insisted by appellees that the evidence shows that a demand for possession was made by the deputy high chief ranger (the only officer of the lodge who did not secede) by virtue of his position representing the high court and the subordinate court. But, if the taking was unlawful, and without right, no demand was necessary, and this question is to be determined by a consideration of the merits of the controversy. The question as to who was the owner of the property must be answered from the circumstances under which it was acquired and the laws governing the organization. It was purchased by Court Glueckauf Lodge No. 101, partly from the high court of Illinois and partly elsewhere. Not having been incorporated, appellants' learned counsel contend that the relations of its members were, in a limited sense, like those of partners, and that they were, therefore, joint owners of the property that they had acquired together; that one joint owner has as much right to the possession of the common property as another, and that, therefore, one cannot maintain replevin against another. This might be true so long as one remains a member of the association. As illustrating the view of the general laws upon the rights of the parties in property accumulated by the joint efforts of the original members, where there is an absence of any agreement among the members as to a dissolution, the following quotation is made from the note of Judge Freeman in the case of Otto v. Benevolent Union, 75 Cal. 308, 17 Pac. 217: “A member of such a voluntary association as one formed for social purposes, or the facilitation of business, has undoubtedly an interest in the general assets of the association so long as he remains a member (In re St. James' Club, 2 De Gex, M. & G. 383, 387; Id., 16 Jur. 1075, 1076; Id., 13 Eng. Law & Eq. 589, 592) which is prima facie equal or proportionate (McMahon v. Rauhr, 47 N. Y. 67, 70;Belton v. Hatch, 109 N. Y. 593, 17 N. E. 225); but, in the absence of any rule to the contrary, he has no severable or transmissible interest, or the right to any proportion of the assets, upon ceasing to be a member, although upon dissolution a member would be entitled to share in the effects (In re St. James' Club, McMahon v. Rauhr, Belton v. Hatch, supra; White v. Brownell, 2 Daly, 329, 356;Id., 4 Abb. Prac. [N. S.] 162, 191).” In the same note, in another connection, Judge Freeman says: “Again, the rights of different persons claiming to represent a subordinate lodge of an order are to be determined by the constitution of the grand lodge. Chamberlain v. Lincoln, 129 Mass. 70. And where the majority of the members of an unincorporated benevolent lodge withdraw from the jurisdiction of the grand lodge, and surrender their charter, the minority, who continued steadfast in their allegiance, and to whom the charter was again delivered, are entitled to the property of the lodge. Altmann v. Benz, 27 N. J. Eq. 331. See, also, Smith v. Smith, 3 Desaus. Eq. 557.” The Independent Order of Foresters is a mutual benefit society. We make the following quotations from Niblack on Mutual Benefit Societies (section 13, p. 16): “If a mutual benefit society...