Gardner v. Newbert, 10529.

• Citation: 74 Ind.App. 183,128 N.E. 704
• Decision Date: 17 November 1920
• Docket Number: No. 10529.,10529.
• Parties: GARDNER et al. v. NEWBERT et al.
• Court: Court of Appeals of Indiana

74 Ind.App. 183

128 N.E. 704

GARDNER et al.

v.NEWBERT et al.

No. 10529.

Appellate Court of Indiana, Division No. 2.

Nov. 17, 1920.

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Action by Harry R. Newbert and others against George Gardner and others. Judgment for plaintiffs, when defendants declined to plead further after demurrer to the complaint was overruled, and defendants appeal. Affirmed.

Ibach, Gavit, Tinkham & Stinson, of Hammond, for appellants.

Wm. J. Whinery, of Hammond, for appellees.

NICHOLS, J.

This action was by appellees against appellants to enjoin them from interfering with appellees in the exercise of certain alleged rights as members of the local lodge known as Lakeside Lodge No. 39 of the International Brotherhood of Boiler Makers and Iron Ship Builders and Helpers of America, and for other relief as appears by the complaint, the substance of which is hereinafter set out. Demurrer to the complaint was overruled, and the appellants, electing to stand upon the ruling of the court, declined to plead further, and judgment was rendered against them, from which this appeal is prosecuted.

The errors relied upon for the reversal are the action of the court in overruling appellant's motion to modify the judgment, and the court's action in overruling a separate and several demurrer of appellants to the complaint. Such complaint is very long, covering about 45 printed pages of appellant's brief. The substance of so much of it as is necessary for this opinion, is as follows:

Appellees are each members in good standing of Lakeside Lodge No. 39 of the International Brotherhood of Boiler Makers and Iron Ship Builders and Helpers of America, a voluntary association organized for the mutual protection of the trades of steam boiler makers and iron ship builders and to protect the wage workers, and institute better conditions among their fellow craftsmen who belong to the order. The International Brotherhood was organized in the city of Chicago, Ill., October 1, 1880, consisting at that time of nine lodges. On September 1, 1893, it was consolidated with the National Brotherhood, a like voluntary organization, and has ever since acted as such voluntary association for the purposes hereinbefore set out. Said International Brotherhood, on August 13, 1890, granted a charter to said Lakeside Lodge No. 39 for the organization of a subordinate lodge in South Chicago, Ill., to be known as a subordinate lodge under the name of the Lakeside lodge No. 39. Said lodge No. 39 has continued as such local subordinate lodge to this date. At the time of its organization said lodge was given exclusive jurisdiction over a large part of Cook county, Ill., and exclusive jurisdiction over all contract work in Lake county, Ind.; the headquarters of said lodge were in South Chicago until September 19, 1917, when by resolution of the Supreme International Lodge in convention assembled its place of meeting was changed from South Chicago, Ill., to Whiting, Ind., and it was given exclusive jurisdiction only of Lake county, Ind. Thereupon it was moved to Whiting, Ind. It has a membership comprised of appellees consisting of 243 members. The said International Brotherhood is now comprised of more than 600 local lodges, of which said lodge No. 39 is one. The government of said lodges is vested in the Supreme International lodge, which said lodge has full jurisdiction over all subordinate lodges, and is the highest tribunal of the brotherhood. The charter of said local lodge was reissued to it October 11, 1909, and is now in full force, and has never been revoked or recalled by said International Lodge, and said local lodge still has complete jurisdiction as a member of the International Brotherhood over Lake county, Ind. The executive and judicial powers only of the International Lodge, while not in session, are vested in an international executive council of the brotherhood, which consists of an international president, assistant president, and all of the international vice presidents. Such executive council has, among its powers, supervision over the order when the International Lodge is not in session. It has power to pass on any subject, proposition, or grievance, and to hear and determine all cases of appeals from the decisions and rulings of the subordinate lodges and international president's decision, and to hear and determine all charges against any subordinate lodge or against any officer of the International Lodge, and all decisions of council are final, unless appeal is made to the International Lodge Convention.

The constitution of the brotherhood provides for the payment of death benefits to all members who are now and have been in good standing continuously as follows: If in good standing for at least 1 year, $50; 2 years' continuous good standing, $100; 3 years' continuous good standing, $150; 4 years' continuous good standing, $200; 5 years' continuous good standing, $250. There is a provision that all members who join before they are 50 years of age may be exempt from dues upon proper application after they are 60 years of age. There is a further provision for disability benefit in the case of certain accidents.

The constitution provides that every member shall be entitled to a fair trial for every offense involving a fine, reprimand, or suspension, and that no member shall be placed on trial, unless charges specifying the offense, signed by a member in good standing, have been submitted to the lodge in writing, and a copy of the same has been furnished the accused member, so as to advise him of the nature thereof and enable him to prepare defense. The funds and property of the subordinate lodges are trust funds for the benefit of its members, and shall not be divided in any manner among the members of the lodge. Upon surrendering the charter all funds must be forwarded to the International Secretary-Treasurer, 50 per cent. of the same to be placed to the credit of such lodge, should it ever be reorganized at that point, and 50 per cent. to be placed to the credit of the general fund. Whenever a subordinate lodge, from any cause, lapses or surrenders its charter or is expelled, the officers must forward the seal, charter, supplies, and funds to the International Secretary-Treasurer.

Appellees say that they each and all of them are now and have for many years last past been members in good standing of said International Brotherhood and in said Lakeside lodge No. 39, a subordinate lodge of said brotherhood, and that 10 of the appellees, naming them, were charter members of said lodge No. 39, and have ever since continued in good standing. On April 18, 1918, one of appellees received from appellant Louis Wey and, Acting International President, the following telegram:

“We have come to the conclusion that the officers and members of lodge thirty-nine no intention of complying with the orders of the convention or executive council therefore you will hereby officially notify that the charter of lodge thirty-nine stand revoked upon receipt of this notice any due stamps placed on members due books after April 19, 1918, will not be recognized. By the officers and lodges of the International Brotherhood you are ordered to notify all members of lodge thirty-nine of this notice failure on your part will be cause for placing responsibility on you at some future time we are asking special service on this message you ordered further to return charter to Room One Law Building, Kansas City, Kansas. Louis Weyand, Acting President.”

Since receiving said telegram appellants Weyand, Atkinson, Nolan, Flynn, Sheehan, Dowd, Merrigan, McCutcheon, Ryan, Schmitt, comprising the International Executive Council of said brotherhood, have refused to recognize appellees, or any of them, as members of said brotherhood, and have refused to recognize said local lodge as a subordinate lodge thereof, and have refused to receive any communication from appellees, notwithstanding the fact that each and all of said appellees were during all of...