Appeal of Baylor

• Decision Date: 22 January 1913
• Citation: 77 S.E. 59,93 S.C. 414
• Parties: APPEAL OF BAYLOR et al. LONG v. UNION BURIAL AID OF GREENWOOD.
• Court: South Carolina Supreme Court

77 S.E. 59

93 S.C. 414

APPEAL OF BAYLOR et al. LONG v. UNION BURIAL AID OF GREENWOOD.

Supreme Court of South Carolina

January 22, 1913

Appeal from Common Pleas Circuit Court of Greenwood County; Frank B Gary, Judge.

"To be officially reported."

Action by M. C. Long against the Union Burial Aid of Greenwood. Judgment for plaintiff, and Floyd Baylor and others, members of the defendant association, appeal. Affirmed.

The following is the order of the lower court:

"Heretofore suit was instituted in this court by M. C. Long, in his own right and as executor, etc., against Union Burial Aid of Greenwood, S.C. The complaint alleged, among other things, that the defendant Union Burial Aid of Greenwood county, S.C., is an unincorporated union, with a membership of 1,000 or 1,500 individuals, too numerous to be made parties defendant. *** The summons was served upon the president of the association. The issues were referred to the master of Greenwood county, who made his report that the petitioners are members of the association, and that judgment should be allowed against the defendant and the individuals. A decree was made April 10, 1912, making the report of the master the judgment of the court, and directing that the plaintiff have leave to enter up judgment and issue execution against the defendant Union Burial Aid or against Floyd Baylor and the other petitioners herein. Judgment was entered and execution issued against the individual property of the petitioners.

"The petitioners herein made their petition in the cause setting forth that prior to April, 1911, your petitioners and others associated themselves together under the name and style of Union Burial Aid of Greenwood county, S. C for the purpose of aiding its members and the families of its deceased members in the defrayal of burial and other expenses; that the contract was that, upon the payment of 25 cents by each member, he would be released from further liability, which sum each had paid; that upon the death of Zenobia Thomas, one of the members of said union, his executor brought suit against the union; that service of the summons and complaint in the case was made upon Floyd Baylor, the president of the union, and was not made upon any other members; that judgment was given against each of the petitioners, and execution was issued thereon; that the judgment and execution, of which the petitioners have never until recently had any notice, are a cloud upon their respective titles; and the petitioners ask that the said purported judgment, entered against them as individuals herein, be set aside and declared null and void, and that the plaintiffs be perpetually enjoined from enforcing, or attempting to enforce, the said judgment and execution.

"A temporary restraining order was made by me, and the respondents were required to show cause why the relief asked for should not be granted. Upon the return being made to this rule, the respondents demurred to the petition. I regard this petition as in the nature of a motion in the cause, and which, strictly speaking, there is no such thing as a demurrer to a motion, nevertheless the arguments in favor of the so-called demurrer may very well be considered as reasons why the motion should not be granted. This is the view I take of the matter now before me, to wit, arguments for and against a motion made in the original cause.

"The petitioners contend that, inasmuch as they were never served with the summons and complaint in the cause, no judgment or execution could be properly issued against them; that the provisions of the statutes, to wit, chapter 51 of the Code of Laws of South Carolina, sections 3336, 3337, 3338, do not apply to a benevolent association such as the one now before the court; that, if they do apply, they are in contravention of the due process clause of the Constitution; and that the contract upon which the judgment is founded limits the liability of the members to the payment of 25 cents each, which amount each petitioner has paid, and therefore the plaintiffs, being parties to the contract, could not obtain judgment and execution against the petitioners. I cannot agree with the petitioners upon any of these propositions.

"The chapter to which reference is made is entited, 'Unincorporated joint stock and other associations.' The sections thereof, to which reference is made, are as follows:

"'Section 3336. All unincorporated associations may be sued and proceeded against under the name and style by which they are usually known, without naming the individual members of the association.

"'Section 3337. Process served on any agent of any unincorporated association doing business in this

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