Burrell v. Michaux

• Decision Date: 17 April 1925
• Docket Number: (No. 8659.)
• Citation: 273 S.W. 874
• Parties: BURRELL et al. v. MICHAUX et al.
• Court: Texas Court of Appeals

273 S.W. 874

BURRELL et al. v.MICHAUX et al.

(No. 8659.)

Court of Civil Appeals of Texas. Galveston.

April 17, 1925.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Suit by D. W. Michaux and others against A. H. Burrell and others.Judgment for plaintiffs, and defendants appeal.Affirmed.

Wilford H. Smith and W. M. C. Dickson, both of Houston, and Denison, Watkins & White, of Chicago, Ill., for appellants.

Pollard, Berry & Fisher, John H. Crooker, and Geo. C. Gaines, Jr., all of Houston, for appellees.

GRAVES, J.

With the interpolation of only a few words tending to greater distinctness, this general statement of the nature and result of the suit is adopted from the appellees' brief as being substantially correct:

"On the 14th day of December, 1918, certain ones of the appellees, as officers of `Arabia Temple' of the `Ancient Arabic Order of Nobles of the Mystic Shrine for North America,' filed in the district court of Harris county their original petition complaining of some of the appellants as officers and members of `Doric Temple' of the `Ancient Egyptian Arabic Order Nobles of the Mystic Shrine of North and South America and Its Jurisdictions,' a local organization in Houston, Harris county, Tex. (the plaintiffs being the `White Shrine' and the defendants the `Negro Shrine'), alleging that said local organization was a colorable imitation of the local organization of appellees' known as `Arabic Temple' of the `Ancient Arabic Order of the Nobles of the Mystic Shrine for North America,' and alleging particularly and in detail the various methods and means adopted by such appellants in appropriating the name, titles of officers, by-laws, regalia, paraphernalia, emblems, pins and passwords of the appellees, and alleging appellees' priority of right, praying for an injunction against such appellants.The contest as originally instituted was thus between the local organizations of Houston, Harris county, Tex.Thereafter on the 17th day of April, 1919, the `Ancient Egyptian Arabic Order Nobles of the Mystic Shrine of North and South America and Its Jurisdictions,' the national organization of said order, of which the local defendant organization in Houston, Harris county, was a part, voluntarily intervened in said suit defending against the allegations of said original petition.Thereafter on the 18th day of December, 1922, the `Imperial Council of the Ancient Arabic Order of Nobles of the Mystic Shrine for North America,' the national governing body of said order in America, of which the local organization of appellees in Harris county, Tex., is a part, voluntarily intervened in said suit, complaining against the original defendants, and also against the national order of appellants, setting up priority of right, the appropriation of name, titles of officers, paraphernalia, etc., and praying for an injunction.

"On the 25th day of March, 1922, the judge of the district court of Harris county, Tex., upon the allegations of the first amended original petition of the `Arabia Temple,' issued a temporary injunction against `Doric Temple' and its officers and members, restraining them from using the name, paraphernalia, constitution, by-laws, title of officers, etc., or any colorable imitation thereof, of `Arabia Temple'; and on the 18th day of December, 1922, upon the allegations of the plea in intervention of `Imperial Council of the Ancient Arabic Order of Nobles of the Mystic Shrine for North America,'the court issued a temporary injunction against the `Ancient Egyptian Arabic Order of the Nobles of the Mystic Shrine of North and South America and Its Jurisdictions,' restraining it from the use of such names, titles of officers, etc.

"The original intervention of the national governing body of the appellees was filed as a corporation, and thereafter on the 18th day of February, 1924, the officers of said Imperial Council as such and as individuals in behalf of said national order, and the individuals in their own behalf and in behalf of all members of said national order, and local `temples,' filed their plea in intervention, adopting all of the allegations in the petition of intervention filed by said Imperial Council as a corporation.

"The contest, therefore, being originally one between `Arabia Temple,' the local organization of Houston, Tex., composed of white persons, a part of the national organization, and `Doric Temple,' a local organization of Houston, Tex., composed of negroes, a part of the national organization, by reason of the voluntary intervention of the national organization of negroes, followed by voluntary intervention of the national organization of white persons, was broadened, and became one between the national organizations as well as the local organizations.The court at the conclusion of the testimony on final trial (a jury being waived), incorporating his conclusions of fact into the decree, entered his judgment perpetually restraining `Doric Temple,' the local organization of Houston, Tex., and the `Ancient Egyptian Arabic Order Nobles of the Mystic Shrine of North and South America and Its Jurisdictions,' the national organization, and its officers and members and successors in office, and its local temples and their officers and members throughout North America, from using the names, insignia, and emblems, paraphernalia, badges, jewels, constitution and bylaws, etc., of the appellees, or colorable imitations thereof, and from organizing or undertaking to organize any subordinate body in colorable imitation thereof, etc."

In protest against that judgment, the parties so acting below in representation of both such local and national "Negro Shrine" organizations, and their officers and members, appeal to this court.

At the request of appellants, the trial court filed very full findings of fact and law.Those of fact materially embodying the history and present status in relation to each other of the two litigating bodies are these: Paragraphs V, VI, IX, X, XI, XII, XIII, XIV, and XVIII, as to the whites, as follows:

"V.On the 26th day of September, A.D. 1872, in the city of New York, and state of New York, Walter M. Fleming, and others, organized a voluntary, fraternal order, which they named `Ancient Arabic Order of the Nobles of the Mystic Shrine,' which name was afterwards changed to `Ancient Arabic Order, Nobles of the Mystic Shrine for North America,' under which last name it is now in existence and has been for many years; that the order has since the 26th day of September, 1872, been the same in all respects except the change of name as here indicated; that said order was organized by Masons of the Ancient and Accepted Scottish Rite of the Thirty-Second Degree or higher, or of Masons who were Knights Templar; that the subordinate bodies of said order were designated as temples, the first organized of which was Gotham Temple, the name of which has since been changed to Mecca Temple, which now exists as such temple and has since its origin so existed, located in the city of New York, and state of New York; thereafter in 1873 the members of said order, with the permission of the original organizers, created Gennessee TempleNo. 2, which said last temple has been continuously in existence and is now in existence under the name of Damascus Temple; that said order has continuously existed and been in active and progressive operation since the 26th day of September, 1872, since which time it has organized throughout North America and within the islands under its jurisdiction 156 temples, each and all of which are under its jurisdiction and have a membership of approximately 600,000; that said order, and each and all of its subordinate temples, have been continuously active and in existence throughout North America and the islands under its jurisdiction since the 26th day of September, 1872, being actively engaged in fraternal and charitable work and the accumulation of property for such purposes during all of said time, amounting to the sum of hundreds of thousands of dollars.

"VI.That the supreme governing body of said order was organized on the 26th day of June, 1876, and known as the `Grand Council' of said order, which said name was within a short time thereafter changed to `Imperial Council of the Ancient Arabic Order of the Nobles of the Mystic Shrine for North America,' and under said original name and the change thereof has continuously existed and been in active operation since the 6th day of June, 1876, and is the supreme governing body of said `Ancient Arabic Order of Nobles of the Mystic Shrine for North America,' and is the plaintiff-intervener herein; that there have been organized with its permission and under its jurisdiction said 156 temples, aforesaid, located throughout the continent of North America and the islands under its jurisdiction, all holding in subordination to it; that said order and said governing body continuously existed as a voluntary, fraternal order or association until the 30th day of March, 1894, at which time it was incorporated by a special act of the state of New York under the name of `Imperial Council of the Ancient Arabic Order of the Nobles of the Mystic Shrine for North America,' and while an issue has been raised as to its incorporation, being now in existence, as the officers of said Imperial Council have intervened herein as such and as members of said order, and as this suit is brought both in its name as a corporation and in the names of its officers and individuals of said order as a voluntary, fraternal society or association, the question of incorporation is immaterial."

"IX.That at the organization of said order and of the Imperial Council thereof, the prerequisite for membership therein was fixed to be that of a Masonic Knight Templar, or of a Thirty-Second Degree of Ancient and Accepted Scottish Rite Mason, and said prerequisites for membership have been consistently adhered to by said...