Almon v. American Carloading Corp.

• Decision Date: 11 November 1942
• Docket Number: No. 26639.,26639.
• Parties: ALMON et al. v. AMERICAN CARLOADING CORPORATION et al.
• Court: Illinois Supreme Court

380 Ill. 524

44 N.E.2d 592

ALMON et al.

v.AMERICAN CARLOADING CORPORATION et al.

No. 26639.

Supreme Court of Illinois.

Sept. 21, 1942.

As Modified on Denial of Rehearing Nov. 11, 1942.

Action by L. E. Almon and others against the American Carloading Corporation, John T. O'Brien, and others, officers of Chicago Local Union No. 710 of the International Brotherhood of Teamsters, involving claims to certain checks allegedly delivered to union officers by defendant corporation. From a judgment of the appellate court, 38 N.E.2d 362, 312 Ill.App. 225, reversing an order of the trial court disqualifying Daniel D. Carmell from acting as attorney for defendants, plaintiffs, by leave, appeal.

Reversed and remanded with directions.Appeal from Appellate Court, First District, First Division, on Appeal from Circuit Court, Cook County; Robert J. Dunne, Judge.

Helen W. Munsert and William B. Esterman, both of Chicago, for appellants.

Walter F. Dodd, of Chicago, for appellees.

MURPHY, Justice.

This case comes to this court by the granting of a leave to appeal from the Appellate Court. The principal controversies are as to the finality of the order of the circuit court of Cook county, from which the appeal to the Appellate Court was taken, and the right of one not a party of record to prosecute an appeal.

The American Carloading Corporation was engaged in the transportation of freight by motor truck. The appellants here, who were plaintiffs in the trial court and will be referred to as plaintiffs, were employed by it in various capacities in connection with its business. All of them were members of local unions affiliated with the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, which is affiliated with the American Federation of Labor. Of the 91 plaintiffs, 56 were members of Chicago Local Union No. 710, 24 of Detroit Local No. 299 and the remainder were members of locals located in other States. On December 22, 1940, a dispute arose between the carloading corporation and plaintiffs which involved a controversy over back pay claimed by plaintiffs.This dispute was soon adjusted by the employer and the employees. Persons who were at the time holding various official positions in Chicago Local Union No. 710 participated in the negotiations leading to the settlement.

On April 16, plaintiffs started an action against the American Carloading Corporation, John T. O'Brien, Frank Brown, Tom Keegan, Joe Deffeley and Mike Healy. The individuals named were officials of Chicago Local Union No. 710 and had participated in the settlement of plaintiffs' claims against the carloading corporation. In substance it was alleged that the agreement was that representatives of the employees and employer were to audit the employer's books to determine the amount due plaintiffs, if any; that after the making of such audit the carloading corporation issued and delivered to defendants approximately 160 checks totaling about $20,000, which checks defendants (the individuals named) refused to deliver to plaintiffs. It was alleged that the terms of the agreement were that the checks should be made payable to each employee for the amount found due and that the defendants other than the corporation, had refused to deliver the checks to the respective payees, except upon condition that they be paid twenty-five per cent of the amount of each check. It was charged on information and belief that the defendants had removed some of the checks, books and records pertaining to the settlement beyond the jurisdiction of the court and that to enforce their claim for a part of the money they threatened plaintiffs with loss of employment or expulsion from the union or both, and personal violence to them and their families.

A temporary injunction was asked to restrain the removal of the checks, commission of acts of violence or the destruction or secreting of any of the records of the local union pertaining to said matter. In addition, plaintiffs prayed that a receiver be appointed for the local union No. 710 and that its officials be required to render a just and true account of all final transactions for the preceding twelve months. Later the complaint was amended by adding eight more persons as parties defendant, who it was alleged were also officials of the Chicago Local Union No. 710. An amendment was made to make it a representative action on behalf of themselves and all other members of the union insofar as it pertained to the appointment of a receiver and the auditing of the books of the union.

Thereafter, the thirteen named as defendants, by their attorney Daniel D. Carmell and other attorneys, filed an answer raising an issue as to what were the terms of the settlement agreement between the plaintiffs and the carloading corporation and claimed that by the agreement they were entitled to a deduction of a percentage of each check. Affirmative relief against the plaintiffs was asked for by counterclaim. Inasmuch as the issues raised by the pleadings are pending in the trial court, where the main litigation remains undetermined, no further reference need be made to this.

After the filing of defendants' answer, plaintiffs filed a motion to disqualify counsel Daniel D. Carmell and the others who had appeared for defendants, and asked that their appearance and all pleadings filed for and on behalf of the defendants be stricken from the record. After a hearing which included the taking of evidence, the court ordered attorney Daniel D. Carmell to discontinue his appearance as attorney in the proceeding for either party. The thirteen defendants filed a notice of appeal from that order. In it they described themselves ‘As officers of the Chicago Local Union No. 710 of the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America.’ Carmell joined in the notice of appeal.

Under the view taken, the evidence upon which the order was entered is immaterial, except insofar as it shows the manner of Carmell's employment and his connection with the litigation. The forty-seven local unions affiliated with the International Brotherhood of Teamsters named delegates to the joint council and these constituted the Joint Council No. 25. Each member of each local union paid a per capita tax to the support of the joint council. Carmell had a contract with Joint Council No. 25, in which he was paid an annual retainer fee which was taken from the general funds of the council. He stated that the joint council told him to appear for the defendants. Plaintiffs claim that this disqualified Carmell from appearing against them in this case where they are seeking relief from those persons who are officials of one of the local unions that is a member of the joint council.

The order appealed from to the Appellate Court is as follows: ‘From all the evidenceand under the pleadings and authorities, this court finds constrained to award the petitioners the relief sought and also finds and orders that Daniel D. Carmell to forthwith not appear in this proceeding in the future for either party, directly or indirectly. The ends of justice will be better served and its best ideals protected and fostered by said non-participation above ordered; and the respondents should have any other counsel they desire and should file substitution and withdrawal of counsel. It is ordered that the prayer of the petition be allowed.’

Plaintiffs' motion to dismiss the appeal in the Appellate Court was...