Donovan v. Danielson

• Decision Date: 28 March 1923
• Parties: DONOVAN et al. v. DANIELSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 432

138 N.E. 811

DONOVAN et al.

v.DANIELSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1923.

Appeal from Superior Court, Suffolk County; Lawton, Judge.

Suit by John B. Donovan and others, as Grand Executive Council of, and in the name of, the Grand Court of Massachusetts, Foresters of America, against Oscar L. Danielson, individually and as Treasurer of Court Gustaf Wasa, Foresters of America, and others, for an accounting, injunction, and other relief. From decrees overruling demurrers, and from a final decree in favor of plaintiffs, defendants appeal. Bill dismissed without prejudice.

The bill of complaint alleged that plaintiffs were members of the executive committee of the Grand Court and authorized to bring the bill in its name; that defendants were officers and members of a subordinate court and fairly represented other members too numerous to be named individually; that both of such courts were unincorporated voluntary associations; that one of the defendants, acting for the others, had notified the Grand Court that the subordinate court had disbanded and expected to form an independent order, and had divided its funds among its members; that under the laws of the Grand Court all property of a subordinate court was a trust fund, and went to the Grand Court when the subordinate court disbanded or dissolved; and that, in violation of such trust, defendants had divided or apportioned such trust fund among themselves for their own benefit or were keeping it secreted from plaintiffs. Defendants' demurrers were overruled and they appealed. Thereafter the case was tried and a final decree rendered, adjudging plaintiffs entitled to the possession and control of the funds and property formerly held by defendants as members of Court Gustaf Wasa and directing defendants to account.

1. Associations k20(2)-Must sue and be sued at law in names of all members.

An unincorporated association cannot sue or be sued as a corporate body, but in law is a partnership, and must sue and be sued in the names of all members, in the absence of legislative authority.

2. Associations k20(2)-All members must join in equity, unless a few are permitted to be sued for all.

In equity, as at law, all members of unincorporated associations must join in bringing or defending suit, unless under equity rules a few can be sued as representatives of all, where the members are too numerous to be joined.

3. Associations k20(2)-Cannot authorize executive council to sue in name of association.

An unincorporated association was without power to authorize its executive council to sue in its name or as the association.

4. Associations k20(5)-Bill by some members demurrable, when not showing all members could not be joined, or that it was brought on their behalf.

Bill in equity brought by members of executive council of unincorporated association was demurrable, where it did not allege that the members of the association were too numerous to be joined as plaintiffs, or that it was brought on behalf of all members of the association.

5. Beneficial associations k16-Suit could be brought against some members as representatives of the whole, when members numerous and matter in dispute one of common interest.

Suit against subordinate lodge, which had seceded from society with which it was affiliated for accounting as to trust funds, was properly brought against the officers as individuals and representatives of the whole membership; the members being numerous and the matter in dispute one of common interest.

6. Beneficial associations k16-Suit to compel lodge to turn over trust fund to parent society properly brought in equity.

Where bill in equity against members of lodge, which had attempted to secede from the society with which it was affiliated, alleged control by defendants of a trust fund which it sought to have turned over to plaintiffs, it was properly brought in equity.

Carl H. Johnson, Harvy & Campbell, Geo. Stanley Harvey, and Frank W. Campbell, all of Boston, for appellants.

John M. Maloney and Edward Carr, both of Boston, for appellees.

PIERCE, J.

This cause comes before this court upon the appeals of the several defendants from the decrees overruling their demurrers, and from the final decrees on the merits in favor of the plaintiffs.

The plaintiffs are all the members of the executive committee of the Grand Court of Massachusetts, Foresters of America, a voluntary association. They bring the bill in the name of said Grand Court, under the supposed authorization of section 35 of the Grand Court Constitution and Laws, which contains the provision that:

‘All suits at law, as complainant or defendant, or for the recovery of property or money, shall be conducted by the Executive Council in the name of the Grand Court, and in case of necessity the Executive Council may engage counsel.’

It appears from section 4 of the Constitution and Laws that the Grand Court shall be composed of--

‘All Past Grand Chief Rangers, the Grand Chief Ranger, the Grand Sub-Chief Ranger, the Grand Treasurer, the Grand Secretary, the Grand Recording Secretary, Grand Lecturer, the Grand Senior Woodward, the Grand Junior Woodward, the Grand Senior Beadle, the Grand Junior Beadle, the Grand Trustees, the delegates from the subordinate courts under the jurisdiction of this Grand Court.’

The record does not disclose the number of subordinate courts under the jurisdiction of the Grand Court of Massachusetts, nor the number of delegates from such courts who, with the 12 elective officers, compose the Grand Court.

The named defendants were prior to January 8, 1920, officers of an unincorporated association (having about 394 members) called Court Gustaf Wasa, which was a subordinate court of said Foresters of America under the jurisdiction of said Grand Court.

‘On February 18, 1920, the defendant Brusquini, financial secretary of said Court Gustaf Wasa, acting therefor and for all of the other defendants, notified said Grand Court, through the plaintiff Mitchell, that Court Gustaf Wasa had disbanded January 7, 1920, expected to form an independent order not affiliated with the Foresters of America, and had divided its funds among its members. On April 17, 1920, said defendant Brusquini, financial secretary of said Court Gustaf Wasa, acting therefor and for all of the other defendants, sent a check to said Grand Court, through the plaintiff, Mitchell, for $86.34 as the amount due to said Grand Court from said Court Gustaf Wasa when the latter court was disbanded.’

Court Gustaf Wasa, on or about January 7, 1920, had a large sum of money in its general fund, which the bill alleges was about $4,000.

Court Gustaf Wasa--

‘was instituted as a subordinate court of the Foresters of America under a dispensation from said Grand Court of Massachusetts and under said Grand Court Laws and has been since its institution under the jurisdiction of said Grand Court. It adopted by-laws which stated that said court and the members thereof should be subject to the provisions of the General Laws of said Supreme Court and Grand Court Laws, which General and Grand Court Laws and all additions and amendments thereto that might thereafter be enacted were adopted by said Court Gustaf Wasa, and in case of any conflict between the by-laws of said Court Gustaf Wasa and the General and Grand Court Laws, said General and Grand Court Laws should prevail.’

It is provided by section 52 of the Grand Court Laws that:

‘All money due to the Grand Court shall be remitted by checks or money orders being payable to the Grand Court of Massachusetts, F. of A. All property of a subordinate court is a trust fund for the purpose of carrying on the benefit features of the order, and if the court shall ever disband or dissolve all its property shall immediately go to the Grand Court, Foresters of America, of Massachusetts.’

It is provided in section 198 of the General Laws and in section 118 of said Grand Court Laws in identical language as follows:

‘Sec. 118. No Grand or subordinate court shall secede or attempt to secede from the order; nor shall any member vote for or urge his court to secede or attempt to secede; if a...