Ex parte Hacker

Citation250 Ala. 64,33 So.2d 324
Decision Date12 June 1947
Docket Number6 Div. 523.
PartiesEx parte HACKER et al.
CourtAlabama Supreme Court

Rehearing Denied Jan. 15, 1948.

John L Busby, Earl McBee, D. C. Ewing, Harold M. Cook, and Jerome Phillips, all of Birmingham, for petitioners.

Horace C. Wilkinson, of Birmingham, for complainants Greenwood.

White Bradley, Arant & All, of Birmingham, amici curiae.

BROWN Justice (dissenting).

On the joint application of the petitioners we granted the common law writ of certiorari to review the proceedings and decree of the Circuit Court of Jefferson County, in Equity adjudging petitioners guilty of civil contempt for refusing to obey the mandate of the final decree entered on the 27th day of September, 1946, in the case of Arthur Greenwood et als. against The Hotel and Restaurant Employees International Alliance and Bar Tenders International League of America et als., case No. 69398 in said circuit court; and a return embodying the record and proceedings of the circuit court duly certified has been made by the register. The case was argued and submitted on March 19, 1947, on motion and merits. The motion entered upon the motion docket with notice to petitioners was made by Arthur Greenwood et als., to dismiss or strike the petition for certiorari and dismiss the proceedings on the ground that the petitioners have a complete and adequate remedy by appeal.

This motion is without merit. It is the settled law in Alabama that common law certiorari is the remedy to review a judgment or decree holding persons guilty of contempt, who are not imprisoned, and if imprisoned, habeas corpus is the remedy. Wetzel v. Bessemer Bar Association, 242 Ala. 164, 5 So.2d 722; Ex parte Dickens, 162 Ala. 272, 50 So. 218; Bankston v. Lakeman, 219 Ala. 508, 122 So. 819; Ex parte Hill, 229 Ala. 501, 158 So. 531; Ex parte John Hardy 68 Ala. 303. The motion to dismiss the proceeding is, therefore, overruled.

Review by the common law writ of certiorari is limited to the question of jurisdiction of the court to enter the decree which was allegedly violated or disregarded and for errors apparent upon the record. If there is any evidence to support the trial court's conclusion of fact on which the contempt is predicated, such conclusion is not subject to review. Ex parte Wetzel, 243 Ala. 130, 8 So.2d 824; Ex parte Slaughter, Fire Marshall, 217 Ala. 515, 116 So. 684.

Procedural irregularities in the injunction proceedings are not regarded as errors apparent. Ex parte Wetzel, supra; Rochelle v. Rochelle, 237 Ala. 530, 187 So. 451.

Petitioners' major contention is that there was an absence of jurisdiction in the circuit court to render the decree of September 27th, 1946, and it is, therefore, void.

By Chapter 4, Article 2, Subdivision 2, embracing §§ 129 through 131, Title 13, Code of 1940, equity jurisdiction is conferred upon the circuit court in all civil causes 'in which a plain and adequate remedy is not provided in the other judicial tribunals.' Code of 1940, Title 13, § 129. And § 1038, Title 7, Code of 1940, provides that injunctions may be granted returnable into any of the circuit courts of this state by the judges of the supreme court, court of appeals or circuit courts or judges of courts of like jurisdiction.

The record before us shows that the court's jurisdiction was duly invoked by a bill of complaint filed by Arthur Greenwood et als., as complainants, in the Circuit Court of Jefferson County, In Equity, against The Hotel and Restaurant Employees International Alliance and Bar Tenders International League of America, a voluntary unincorporated labor organization, and Culinary Workers Union Local 459 of the Hotel & Restaurant Employees International Alliance and Bar Tenders International League of America, an unincorporated labor organization, Carl Hacker and George Hardwick, in conformity with Alabama Equity Rule 2. Code of 1940, Title 7 Appendix, p. 1037. And §§ 143 and 144 of Title 7, Code of 1940, providing for service of process, is notice to and binding upon the individuals constituting the organization or association. Grand International Brotherhood, etc. v. Couch, 236 Ala. 611, 184 So. 173; 7 C.J.S. Associations, § 1.

The bill in the injunction proceedings alleges that on the 4th of September, 1946, the individual defendants presented to the Greenwoods a contract for negotiation as to wages, hours and working conditions of employees written by Hacker and were informed by Greenwood that he and his partners were not in position to engage in negotiations until they had time to consider the contract and obtain legal advice in respect thereto. That the contract was left with the Greenwoods and said individual defendants went away but returned on Friday, the 6th of September for an answer and when the Greenwoods informed them that they had been unable to consult counsel in respect to the contract, Greenwood was informed by Hacker that they could wait no longer and the strike was called and the picket line set up.

The proposed contract, inter alia, contained the following provisions:

'Article I. Type of Shop: The Employer agrees to hire and retain in his employ no other of the employees herein mentioned but members in good standing in the Union and to hire them through the office of the Union. The Union shall have a 24-hour limit in which to furnish the requested employees. If the Union is not in a position to furnish the employees requested within that time, then the Employer shall have the right to hire from the open market, provided, however, that the employees so hired shall not be objectionable to the Union, and that employees so hired shall perfect their membership in the Union within FIFTEEN DAYS after being hired. All employees so hired shall be on probation for the first fifteen days of their employment and subject to dismissal without cause.

'Article II. Interviews of Employees: The official representative of the Union shall have access to the property of the Employer during the regular business hours for the purpose of talking with employees on duty concerning Union business.'

'Article XIII. Dressing Rooms, Lockers, Toilets: The Employer shall provide for his employees sanitary toilets and dressing rooms, and an individual locker for each employee with a lock and key for it. The Employer shall be financially responsible for losses incurred through his failure to comply with the latter part of this paragraph. [Italics supplied.]

'Article XIV. Fines: There shall be no employer fines for any purpose nor shall there be any charges for breakage unless through willfull or gross neglect on the part of an employee.

'Duration of Agreement: This agreement constitutes an understanding between _____ operating the Greenwood Cafe located at 407 North 20th Street, in the City of Birmingham, Alabama, and the Culinary Workers Union Local 454 of the Hotel & Restaurant Employees International Alliance and Bartenders International League of America, affiliated with the American Federation of Labor as the duly authorized and qualified agent for the employees now employed, or who may hereafter be employed at the above address or any other establishment which may in the future be operated in Jefferson County by the above named Employer.

'It is expressly understood between the parties that should the above establishments be sold or leased as a concession during the life of this agreement, then all the terms and conditions of this agreement must continue to be in full force as to the establishment and is thereby upon the heirs, executors and assigns. * * *.'

The bill further alleges: 'The said Carl Hacker and the said George Hardwick at that time stated that they couldn't wait; that Complainants had had time enough and thereupon left the complainants' place of business and about 11:45 a. m. thereafter the Local and International Union, acting through the said Carl Hacker and the said George Hardwick, duly authorized so to do by said organizations, called a strike of the employees of the Complainants and stationed pickets at the front and rear entrances of Complainants' place of business. Said pickets varied in number from two to ten and included the said Carl Hacker and the said George Hardwick. Said pickets displayed large placards approximately three feet square on which was printed the words 'Greenwood's is on Strike. Employees demand more Wages and less Hours.' Said pickets congregated around the front and rear of Complainants' said place of business and displayed said placards and walked up and down the sidewalk in front of the main entrance of Complainants' place of business and up and down the alley entrance to Complainants' place of business and informed people that the Unions above referred to called a strike and that prospective customers who were about to enter the place of business would be low down and disreputable if they crossed the picket line and they greatly interferred with the transaction of business and have made it impossible for the Complainants to transact business as long as said picket line is maintained.

'Complainants aver that prior to the filing of this bill and since the calling of said strike, they informed the Respondents that they always had been and are now ready, willing and able to negotiate with the Respondents with respect to a contract relating to wages, hours and working conditions of the employees of the Complainants and that if they were unable to agree with the Respondents on the terms and conditions of such contract, they were ready, willing and able and would submit their differences to arbitration, and they requested the Respondents to call off said strike and to negotiate with the Complainants for a contract relating to wages, hours and working conditions with assurance that...

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8 cases
  • Inglis v. Operating Engineers Local Union No. 12
    • United States
    • California Court of Appeals Court of Appeals
    • 29 Diciembre 1961
    ...is not everywhere upheld (Grand International Brotherhood of Locomotive Engineers v. Crouch, 236 Ala. 611, 184 So. 173; Ex parte Hacker, 250 Ala. 64, 33 So.2d 324), the majority view does not permit a member of an unincorporated association to maintain a tort action against it for the negli......
  • International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Hatas
    • United States
    • Alabama Supreme Court
    • 5 Agosto 1971
    ...of the filing of the complaint was shown on its face, we have held that courts take judicial notice of their own records.--Ex parte Hacker, 250 Ala. 64, 33 So.2d 324; Badham v. Badham, 244 Ala. 622, 14 So.2d 730. In Parker v. Bedwell, 'The further pertinent facts are that the first call of ......
  • Ex parte Hennies
    • United States
    • Alabama Court of Appeals
    • 30 Junio 1947
    ...111 Ala. 99, 20 So. 343; Ex parte John Hardy ; Ex parte Dickens, supra [162 Ala. 272, 50 So. 218]' In the recent case of Ex parte Hacker et al., Ala., 33 So.2d 324, Justice Brown 'It is the settled law in Alabama that common law certiorari is the remedy to review a judgment or decree holdin......
  • Kizale v. Kizale
    • United States
    • Alabama Court of Civil Appeals
    • 1 Diciembre 2017
    ...standard, common in civil cases, although not so high as ‘beyond a reasonable doubt.’ "); see also Ex parte Hacker, 250 Ala. 64, 70, 33 So.2d 324, 330 (1947) (Brown, J., dissenting) (explaining, in an appeal involving contempt of an injunction, that a "complaining party [has] the burden of ......
  • Request a trial to view additional results

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