American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos. 1 and 3

• Decision Date: 18 October 1898
• Citation: 90 F. 598
• Parties: AMERICAN STEEL & WIRE CO. v. WIRE DRAWERS' & DIE MAKERS' UNIONS NOS. 1, 3 et al.
• Court: U.S. District Court — Northern District of Ohio

90 F. 598

AMERICAN STEEL & WIRE CO. v. WIRE DRAWERS' & DIE MAKERS' UNIONS NOS. 1, 3 et al.

United States Circuit Court, N.D. Ohio, Eastern Division.

October 18, 1898

Squire Sanders & Dempsey, for complainant.

Arnold Green and M. A. Foran, for defendants.

HAMMOND J.

There is a motion by Fred Walker, one of defendants, to vacate the service of subpoena upon him as the president and chief officer of the Wire Drawers' & Die Makers' Union No 3, and to dismiss the bill as to that union, and also as to the Wire Drawers' & Die Makers' Union No. 1, and to strike their names from the record, for the reason that there is no law or precedent for suing a voluntary association by its name, or for obtaining jurisdiction over it by service of a summons on one of its officers. There is also a demurrer by the same Fred Walker, 'for the reason that the facts stated in said bill of complaint do not constitute a cause of action against said defendants. ' The title in the caption of this demurrer is as follows: 'The american Steel & Wire Company, Complainant, vs. Wire Drawers' &amp Die Makers' Union No. 1, of Cleveland, Ohio, Defendants ' This pleading probably follows the form used under the state code of practice, which is wholly inapplicable here, and it is altogether inartificial, according to our equity rules and practice. If it were in proper form, not being verified by defendant, no certified by counsel, as required by equity rule 31, it must be wholly disregarded, if it be permissible at this stage of the proceeding, and on this application for a preliminary injunction, to hear it at all. National Bank v. Insurance Co., 104 U.S. 54, 76; Furnace Co. v. Witherow, 149 U.S. 574, 13 Sup.Ct. 936; Secor v. Singleton, 9 Fed. 809. It has not been set down for hearing by the plaintiff according to equity rule 33; and the defendant's remedy, on failure of the plaintiff to so set the demurrer for argument, is regulated by rule 38. Or, for the fatal defect above pointed out, the plaintiff may disregard it, and take a pro confesso, at the proper time, under equity rules 18 and 19; or move to strike it from the files. Goodyear v. Toby, 6 Blatchf. 130, Fed. Cas. No. 5,585, and the cases last above cited. Hence, any disposition of this demurrer now would be premature, and I only refer to it because it is presented by counsel as having a bearing upon the application for a preliminary injunction. If it suggested an entire absence of jurisdiction over the parties or the subject-matter, the duty of the court would be to consider that suggestion, no matter how defective it may be as a pleading; but it is not that kind of a demurrer. It has been considered, however, in connection with and as a part of the motion to vacate the service. The demurrer, seemingly, is intended as a general demurrer for all the 'defendants,' though it is in terms only the demurrer of one of them, Fred Walker, namely; or else, taking with its caption, it is intended to be the demurrer of Wire Drawers' Union No. 1. Now, by the motion filed it appears from its recitals that this defendant Walker is the president of Wire Drawers' Union No. 3, not No. 1, mentioned in the demurrer; and yet in the motion he also assumes to represent Union No. 1, as well as Union No. 3, and it may be that he assumes by the demurrer to represent all the defendants, the two unions as well as all the rest. The truth is, there is too much generality and want of precision of statement in all the pleadings, the irregularities being quite embarrassing to the disposition of the present motion to vacate the service.

The bill is unquestionably defective, and there is an application to amend it, which should be considered along with this motion. While alleging that they are 'voluntary associations,' the bill sues the two unions as if they were suable entities, as corporations are, and the subpoena issues against them as such. There is not an averment in the bill which undertakes to reach them otherwise than by this general suit against them. It is too plain for any argument that they cannot be so sued. The right to sue and be sued is a corporate franchise, must be granted by legislation, and voluntary associations only possess it under the circumstances mentioned in Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566. This bill does not, by its allegations, connect any of the defendants with these unions, unless the caption, which is equivocal in this regard, may be taken to aver that all the defendants named therein are now members of them. If so, no distinction is made between the two, showing which of the defendants are members of the one and which of the other. The punctuation of the caption, however, would indicate that the defendants are sued individually, and not as members of the unions. It reads thus: 'The American Steel & Wire Company, Complainant, vs. Wire Drawers' and Die Makers' Union No. 1, of Cleveland, Ohio, and Wire Drawers' Union No. 3, of Cleveland, Ohio, of the Federated Wire Trades of America; the respective members of said unions; Walter Gillette; E. A. Cliff; F. Marquardt; and many others, similarly named, to the number of 86-- Defendants. ' This would seem to indicate that the two unions were sued respectively, then 'the respective members of said unions' in solido, and then the individuals named as individuals, and not as members or representatives of the unions. The allegations of the bill do not help this in any way. The individuals are not averred to be officers or members of the unions, or to have any connection with them, except in the eighth paragraph it is related that 'certain committees (of which the defendant Gillette was a member) from said unions have called upon the officers and agents of your orator for the avowed purpose of demanding a recognition of a certain scale provided and dictated by said Gillette and his associates, in connection with and through the medium of said unions. ' This is all there is of it. Even the conspiracy paragraph No. 13 for the unlawful purpose,' etc., and does not at all advise us of the particulars of the conspiracy in relation to the representative attitude of any of the defendants. So that the bill is entirely defective as a suit against voluntary associations.

The subpoena and rule to show cause follow the identical words of the caption, and command the appearance of the defendants in those words. The return No. 2. of the marshal states that he served the process on 'Wire Drawers' Union No. 1 by delivering a copy of the bill to R. Heiden, treasurer of said union, the president of said union not found in my district'; and his return No. 1 states that he served the process on 'Wire Drawers' Union No. 3 by delivering a copy to Aug. Maltois, vice president of said union, the president of said union not found in my district.' Both of these officials are named as defendants, but neither in his official capacity, and there is no allegation of the bill connecting them with the unions. The amendment that is asked cures this defect of substantial and specific allegation very thoroughly, but counsel of the defendants object to its being filed now, and insist that the proof shows that Gillette is not the president of this union No. 1, but only a member of the executive committee of the Federated Wire Trade, another and distinct organization, not sued by this bill. But, however that may be, the amendment avers that Gillette is president of the Union No. 1 and Walker of Union No. 3, and now specifically states that Cliff, Marquardt, Haak, Heiden, and about 40 others named in the amendment are members of these voluntary associations, and asks that Gillette and Walker, the respective presidents, and the named members, be made parties 'as representing said two voluntary associations and its membership, as fully as if each member thereof were made a party defendant thereto.' It also avers that the membership is numerous, that all of them are not known to the plaintiffs, and that it is impracticable to make them all parties to this bill. Counsel for defendants say, in their brief, that some 10 persons named in this amendment are not members of these unions. That would seem quite immaterial when there are 30 members left to represent the whole; but, technically, we cannot try that question now, and in this manner, and only on a proper plea in abatement, which is a sufficient answer to the suggestion, as also it is to that about Gillette not being the president of Union No. 1.

It is also objected that the amendment cannot now properly be made to serve the purposes of this application for injunction, but that it must take the regular course, by having process issued, notice served, and a new application for injunction made in that behalf. As I have repeatedly said in many judicial judgments, the federal statute of amendments is the most liberal and imperative since the ancient and beneficent statute of jeofails. Rev. St. Sec. 954. It commands that the court 'may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe. ' This applies to defects appearing on an application for preliminary injunction as well as to any other hearing, both in its letter and the spirit of liberality indicated by this and the other provisions of the statute. The court may use its discretion as to the conditions imposed, and prescribe rules to that end; but I doubt if it may ever refuse to receive an amendment, and thereby annul the statute, which permits the parties to amend 'at any time' upon compliance with such conditions as the rules prescribe. Following both the letter and spirit of the statute, which is old as the courts themselves, our equity rules regulate the...