Lone Star Lodge No. 1,935, K. & L. of Honor v. Cole

• Decision Date: 29 October 1910
• Citation: 131 S.W. 1180
• Parties: LONE STAR LODGE NO. 1,935, KNIGHTS AND LADIES OF HONOR, et al. v. COLE et al.
• Court: Texas Court of Appeals

131 S.W. 1180

LONE STAR LODGE NO. 1,935, KNIGHTS AND LADIES OF HONOR, et al. v. COLE et al.

Court of Civil Appeals of Texas.

October 29, 1910.

Rehearing Denied November 26, 1910.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by the Lone Star Lodge No. 1935, Knights and Ladies of Honor, and others against Marie J. Cole and others. From an order dissolving a temporary injunction, plaintiffs appeal. Affirmed.

This is an appeal from a judgment dissolving a temporary, prohibitive injunction and refusing a mandatory injunction prayed for by the plaintiffs. The action was originally brought by 29 persons, members of the Lone Star Lodge, Knights and Ladies of Honor, against William Repp, Protector of said lodge, Marie J. Cole, Grand Protector of the order within the state of Texas, and George D. Tait, Supreme Protector of the order, to restrain them from interfering with the affairs of said lodge. A temporary injunction was issued as prayed for, and the defendants were notified to appear on September 16, 1910, to show cause why said injunction should not be made permanent. On September 16, 1910, they appeared and filed an answer to the rule to show cause and filed also an answer to the petition. The plaintiffs thereupon filed an amended petition, making two other members of said lodge No. 1935 parties plaintiffs, and in addition to the persons named made the Supreme Lodge, Knights and Ladies of Honor, Grand Lodge, Knights and Ladies of Honor, of the state of Texas, W. J. Condon and Robert Hunerberg, two of the trustees of said Lone Star Lodge, and J. M. Cole, husband of the defendant Marie J. Cole, parties defendant. In said amended petition plaintiffs prayed for another temporary, prohibitive writ of injunction and also for a mandatory injunction. The prohibitive writ was granted and the defendants notified to appear September 23, 1910, to show cause why the mandatory writ of injunction should not also be granted. On September 23, 1910, the defendants appeared and filed a first, amended original answer and also an answer to the rule to show cause. In said answer they asked that the temporary injunction theretofore granted be dissolved and that said mandatory injunction be refused. On said date the hearing was postponed until the next day and in the meantime Hon. E. B. Muse, judge of the Forty-Fourth judicial district and Hon. J. C. Roberts, judge of the Sixty-Eighth judicial district, exchanged districts. On September 24, 1910, the plaintiffs filed a response to the defendants' answer to the rule to show cause, and consented that the motion to dissolve the previous injunctions be heard immediately. Thereupon the hearing before Judge Roberts proceeded; but not being concluded on that day it was postponed to, and continued on, September 28, 1910. The hearing was on the sworn pleadings alone; no evidence being introduced. At the conclusion of the hearing, the court dissolved the temporary injunctions theretofore issued and refused the mandatory injunction.

The plaintiffs complain of an order of suspension of said Lone Star Lodge No. 1935, issued by the said Supreme Protector of the Order, George D. Tait, on September 3, 1910, the delivery of certain paraphernalia by the trustees of said lodge to the defendant Marie J. Cole, as Deputy Supreme Protector, in pursuance of said order of suspension and of the denial of the authority of the plaintiff, R. Roth, as financial secretary of said lodge, to collect dues and assessments from the members thereof, since said order of suspension. The prayer of the petition is that the judge of the court issue a mandatory writ of injunction, or such other writ as may be proper, to effect the immediate return and restoration unto said local lodge and the plaintiff members thereof, of its property set forth in the above petition as having been wrested from it; that the defendants, and each of them, be enjoined from in any manner interfering with the custody and use of said property so long as same may be used by plaintiffs for the benefit of said local lodge; that the defendants, and each of them, be restrained and enjoined from in any manner interfering with the deliberations, meetings, or workings of said local lodge; that they, and each of them, be enjoined from in any manner contending or claiming that said local lodge is dissolved or suspended, and be enjoined from in any manner enforcing or attempting to enforce such contention or claim; that the defendants, and each of them, be restrained from in any manner questioning the legality of payments in the form of assessments, dues, or otherwise, heretofore made or hereafter to be made by plaintiffs and other members of said local lodge unto plaintiff R. Roth, as the duly elected and qualified agent and officer authorized to accept and receipt for said payments; that defendants, and each of them, be restrained and enjoined from in any manner asserting, contending, or claiming that the rights of plaintiffs, and those for whom they sue, as insured members of the order, have become or are impaired, or are not in full force and effect.

The grounds alleged upon which plaintiffs seek the foregoing relief are, in substance, that they are members of said suspended lodge; that said order of suspension was unauthorized and invalid; that the chief purpose of the order is to furnish insurance on the lives of its members out of a relief fund created by dues and assessments paid into the treasury of the local lodge and, by the proper officer of such lodge, transmitted to the Supreme Treasurer of the order, but that one of the privileges, among others, of said order is that of giving moral and material aid to its members by holding moral and instructive lectures and by encouraging each other to obtain employment, etc.; that through the medium of said lodge they are entitled to participate in the control and management of the order and in the disposition of the relief fund thereof, amounting to about $300,000; that they are holders of benefit certificates, or contracts of insurance, issued by the order and make payment of the dues or assessments accruing on account thereof to the order through the agency of said lodge and its officers; that the order of suspension affects their benefit certificates in the order; that it undertakes to impose certain onerous conditions on their right to maintain the same in force, in that the effect of the suspension is to compel the members of the suspended lodge to obtain from the Supreme Secretary of the order a certificate of good standing and to deposit it in 60 days with such other lodge of the order as the member may desire to join, and to pay therefor, in addition to accrued assessments and pending assessments, the sum of $1; that such member must also show that since the suspension of the lodge he has not been sick, or undergone any surgical operation, nor has he received any serious injury; that if he has, he must be re-examined before admission. Plaintiffs further alleged that the suspension order made by the Supreme Protector and the wresting of the lodge property, consisting of its charter, emblems, badges, books, etc., used in holding the secret meetings of the lodge in accordance with the ritual and secret work of the order, of the estimated value of $750, is void and of no force or effect because such action was taken ex parte and without notice to the suspended lodge, or to any member thereof. They aver that the defendants, Condon and Hunerberg, two of the trustees of said lodge No. 1935, are in sympathy with their codefendants and have conspired with them to attempt the destruction of said lodge and to wrest its property from it, and that by reason of these facts said trustees are unfit persons to be entrusted longer with the supervision and custody of said property; that the plaintiff R. Roth is the financial secretary of said Lone Star Lodge and authorized to collect dues and assessments from the members of said lodge, but that the defendants, since the issuance of said order of suspension, are disputing his authority to do so.

The defendants answered under oath denying specifically the material allegations of plaintiffs' petition upon which they base their right to the injunctions asked. They admit the order of suspension, but aver the validity and regularity thereof, setting forth the provisions of the constitution and laws of the order under which it was issued and the existence of conditions which they claim authorized and required its issuance; that the defendant Marie J. Cole holds the property of the lodge charged to have been wrongfully wrested from the plaintiffs in trust, setting forth the provisions of the constitution and laws of the order and the existence of facts which it is claimed authorized and required its delivery to her. The answer denies the conditions alleged to be imposed upon the maintenance of the benefit certificates of the plaintiffs and other members of said lodge; avers that said benefit certificates are contracts exclusively between the incorporated Supreme Lodge, Knights and Ladies of Honor, and the plaintiffs, and are unaffected by said order of suspension; avers that the rights of the plaintiffs as members of the order are not affected by said order of suspension; that the plaintiffs and the members of said lodge may maintain their certificates in force by simply remitting their dues and assessments to the Supreme Treasurer, or that they may deposit their certificates of good standing in any other lodge of the order to which they are acceptable, and remit their dues and assessments through such lodge; that there are four other lodges in Dallas and immediate vicinity; and that the moral, social, and intellectual privileges extended by the order are granted alike through all of such lodges; that the fund of $300,000, referred to by the plaintiffs, is a mere temporary fund, received from assessments, and to be immediately paid out in...