Hanson v. Hutcheson

• Decision Date: 25 May 1956
• Docket Number: No. 18818,18818
• Parties: Gotthard HANSON, Appellant, v. Maurice A. HUTCHESON and Madeline Hutcheson, Co-executors of the Last Will and Testament of William L. Hutcheson, Deceased, Appellees.
• Court: Indiana Appellate Court

Page 564

134 N.E.2d 564

127 Ind.App. 50

Gotthard HANSON, Appellant, v. Maurice A. HUTCHESON and Madeline Hutcheson, Co-executors of the Last Will and Testament of William L Hutcheson, Deceased, Appellees.

No. 18818.

Appellate Court of Indiana, In Banc.

May 25, 1956.

Davis, Hartsock & Wright, Andrew Jacobs, Paul Y. Davis, Indianapolis, for appellant.

Schortemeier, Eby & Wood, Indianapolis, Robert K. Eby, Francis X. Ward, Indianapolis, Charles H. Tuttle, New York City, of counsel, for appellees.

KENDALL, Judge.

Appellant filed amended claim to recover funds which he alleged had been misappropriated from the treasury of the United Brotherhood of Carpenters and Joiners of America, which funds were converted to the personal use of the appellees' decedent, William L. Hutcheson, who had been an officer of the Brotherhood from 1916 until 1953. He contended that the action was brought on behalf of himself and all other similar members.

The appellees answered in abatement in two paragraphs. Appellant filed a reply (answer), to which appellees filed a demurrer, which was sustained by the trial court. Appellant failing to plead further, judgment was rendered that the amended claim abate.

The assignment of errors are: (a) The alleged error of the trial court in sustaining appellees' demurrer to appellant's reply (answer); (b) Error in rendering judgment abating the claim.

The first paragraph of answer in abatement was a denial that the appellant was a member of the Brotherhood entitled to prosecute the asserted claim; the second paragraph alleged that Local Union 101 of the Brotherhood, through which appellant had derived his pretended membership, was an indispensable party to the present action; that such indispensability had been adjudicated in a prior suit brought by appellant against the decedent during his lifetime in the United States District Court for the Southern District of Indiana, and that that particular action had been dismissed because of the absence of such Local Union. See Hanson v. Hutcheson, 7 Cir., 1954, 217 F.2d 171; Hutcheson v. Hanson, 1951, 121 Ind.App. 546, 98 N.E.2d 688.

Appellees further answered that appellant was a resident of Baltimore, Maryland, and that he claimed to be a member of Local Union 101; that for ten years prior to the filing of the amended claim, the appellant had not been recognized or considered a member of the Local Union, was not carried on the records thereof as a member; that he attended no meetings and paid no dues; that the opinion rendered by the United States Court of Appeals, 7th Circuit, Hanson v. Hutcheson, supra, determined and adjudicated that Local Union 101 is a necessary and indispensable party to these proceedings and that without the presence of said Local Union, appellant was without authority to prosecute this action.

Appellant replied (answered) to the plea in abatement in substance alleging that he was a member of Local 101, which Local had not recognized appellant because appellees' decedent, William L. Hutcheson, and appellee, Maurice A. Hutcheson, intimidated the Local into not recognizing appellant because appellant prosecuted actions against them for theft of union funds; that the claimant had tendered dues which were refused by Local 101 because of such intimidation. Appellant denied by his reply (answer) that the decision of the Circuit Court of Appeals decided anything except to affirm the decision of the United States District Court for the Southern District of Indiana. The demurrer filed by appellees to the reply (answer) was for want of facts.

By the issues tendered, certain questions are presented, namely: (a) Can appellant in this matter prosecute the amended claim when the same subject matter between the same parties had been determined by this court and the United States Court of Appeals, 7th Circuit? (b) Does appellant possess the character of a member of the Brotherhood entitling him to prosecute the amended claim, and (c) Under the facts as given in the record, and, in view of the admissions in the amended claim and reply filed, is Local 101 a necessary and indispensable party?

The by-laws of the Brotherhood provide in part as follows:

'When a member owes a sum equal to three months' dues, he is not in good standing and is thereby suspended from all donations until three months from the date he has paid said arrearages, which payment must include the payment of dues for the month in which said payment is made. A member in arrears must square all arrearages in full within one year or stand suspended. * * * A member owing a Local Union a sum equal to six months' dues shall have his name stricken from the list of membership without a vote of the Local Union * * *'.

Appellant argues that appellees' contention, that appellant's non-recognition by Local 101 disqualifies him from maintaining this action, is decided adversely to appellees in the case of Sourwine v. Supreme Lodge Knights of Pythias of the World, 1895, 12 Ind.App. 447, 40 N.E. 646.

With such contention, this court does not agree. In fact, the Sourwine case, supra, is authority substantiating appellees' contention, the distinguishing point being that in the Sourwine case, supra, the lodge itself was a party to the action as to membership therein. The direct opposite action was taken in this suit. Appellant has pursued action for nearly ten years, has been in two courts of appeal prior to this action, but, at no time, has brought the Local Union into court. Appellant also cited Searles v. Northwestern Mut. Life Ins. Co., 1910, 148 Iowa, 65, 126 N.E. 801, 29 L.R.A., N.S., 405; Noble v. McGinnis, 1877, 55 Ind. 528; Niblack v. Goodman, 1879, 67 Ind. 174.

The Searles case, supra, was one at law for the recovery of money. The court distinctly pointed out in that case that a different rule would apply to a claim in equity. Further, in the case of Hutcheson v. Hanson [121 Ind.App. 546, 98 N.E.2d 692], supra, § 2-219, Burns' 1946 Replacement, was construed by this court as to indispensable parties, holding that it was, 'This section' (2-219, supra) 'is in effect a re-enactment of the equity rule with...