Lowry v. INTERNATIONAL BROTHERHOOD, ETC.
| Decision Date | 22 March 1955 |
| Docket Number | No. 15281.,15281. |
| Citation | 220 F.2d 546 |
| Parties | Walter S. LOWRY, Jr., v. The INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS AND HELPERS OF AMERICA, et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Albert Sidney Johnston, Jr., J. D. Stennis, Jr., Biloxi, Miss., for appellant.
Webb M. Mize, R. W. Thompson, Jr., Gulfport, Miss., Clif. Langsdale, Kansas City, Mo., of counsel, for appellee.
Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.
This appeal is from a judgment of dismissal on the ground that the action is barred by the applicable state statute of limitations. Appellant was a member of the International Brotherhood of Boilermakers, Iron Ship Builders and Helpers of America, and of Local Lodge 693. By a letter of October 29, 1947, the national president of the union in Kansas City, Kansas, suspended him for violations of the constitution of the union. The letter was received on October 31, 1947, by the appellant in Pascagoula, Mississippi, his residence and the place of his membership in the union. An appeal was taken to the national executive council in Chicago, which upheld the action of the president. Thereupon, the appellant was informed that he could appeal to the international convention at Montreal on May 2, 1949, but he did not do so.
On October 28, 1953, appellant filed suit in the United States District Court for the Southern District of Mississippi for damages and an injunction against the union and others. On March 13, 1954, he filed an amended complaint, which was dismissed for lack of jurisdiction of an indispensable party. On the same day, after the dismissal of the suit in the federal court, the appellant filed the present suit against the appellee union, in the Chancery Court of Jackson County, Mississippi, whereby he brought attachment and garnishment proceedings against resident defendants for moneys and funds of the non-resident defendant, the union, in the possession of said resident defendants. He based his cause of action on his alleged wrongful suspension and expulsion from the union. The suit was removed to the court below, and the appellee filed a motion to dismiss, in which it was alleged that appellant's cause of action was barred by the Kansas statute of limitations of two years, and by the Mississippi statute of limitations of six years. The court sustained the motion, and held that appellant's cause of action was barred by both the Kansas and Mississippi statutes of limitations. The court held that the wrong complained of accrued on October 31, 1947, the date the appellant received the letter from the president of the union advising him that he had been suspended from membership in the union; that the letter was written and mailed in Kansas and therefore the wrong was committed in Kansas; that the action was one in tort and did not arise ex contractu; and that the Kansas statute of limitations of two years was applicable. The court also held that the suit was barred by the Mississippi statute of limitations.
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Lowry v. INTERNATIONAL BROTHERHOOD, ETC.
...of six years, Code 1942, § 722 applied instead of the Kansas statute of two years, G.S.1949, 60-306. Lowry v. International Brotherhood, etc., 5 Cir., 1955, 220 F.2d 546. On July 28, 1954, pending his appeal from the dismissal of his second action, Lowry filed a third action, also in the Ch......
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Niner v. Hanson
...a strong dissent from the majority holding that the statute limiting tort actions at law applied. Likewise, in Lowry v. International Brotherhood, etc., 5 Cir., 220 F.2d 546, 548, the suit was for damages for wrongful suspension. In Barnhart v. Western Md. Ry. Co., D.C., 41 F.Supp. 898, 904......
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Worley Brown, LLC v. Mississippi Dep't of Archives & History
...that requesting different types of relief does not bar application of the savings statute is Lowry v. International Brotherhood of Boilermakers, etc., 220 F.2d 546, 547 (5th Cir. 1955). In Lowry, the plaintiff sought monetary damages and injunctive relief in the first suit and only monetary......
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Hyde Construction Company v. Koehring Company
...the State of Mississippi at which time and in which place their cause of action for abuse of process accrued. In Lowry v. International Brotherhood, 220 F.2d 546 (C.A.5, 1955), the Fifth Circuit "Where suspension of union member was initiated by president of union in Kansas, where letter of......