Lundine v. McKinney

• Decision Date: 22 September 1944
• Docket Number: No. 2463.,2463.
• Citation: 183 S.W.2d 265
• Parties: LUNDINE et al. v. McKINNEY et al.
• Court: Texas Court of Appeals

183 S.W.2d 265

LUNDINE et al. v. McKINNEY et al.

No. 2463.

Court of Civil Appeals of Texas. Eastland.

September 22, 1944.

Rehearing Denied October 20, 1944.

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Action by Arthur G. Lundine and others, as members of the Operative Plasterers and Cement Finisher's Local Association No. 435, and the Operative Plasterers and Cement Finisher's International Association, and in behalf of and for the benefit of said Local and as representatives of all members of said local, against James F. McKinney, George James, Mike Reilly, and the said International Union for injunction and other relief. A plea in abatement filed by the defendant Local Union was sustained, and the case dismissed, and plaintiffs appeal.

Reversed and remanded.

John D. McCall, David L. Broadus, and E. B. Votaw, all of Beaumont, for appellants.

Baker & De Lee and Shivers & Keith, all of Port Arthur, for appellees.

GRISSOM, Justice.

Arthur G. Lundine and others, who alleged they were members in good standing of both the Operative Plasterers and Cement Finisher's Local Association No. 435 and the Operative Plasterers and Cement Finisher's International Association, hereinafter referred to as local and International, respectively, brought this suit as individual members of said local; they alleged that they brought the suit also in behalf of and for the benefit of said local and as representatives of all members of said local. The defendants named in plaintiffs' petition were James F. McKinney, George James, Mike Reilly, and said International. The individual plaintiffs named in the petition include D. C. Hood, the elected business agent for the local, who will hereinafter be referred to. Seventy-four individuals were named as plaintiffs. Seven of the named plaintiffs filed "disclaimers" in which they alleged the suit was filed without their consent or knowledge, and that they did not seek any of the relief prayed for in plaintiffs' petition; they prayed that their names be deleted from the record as plaintiffs, or, in the alternative, that plaintiffs' petition be dismissed.

The local (alleging it was acting through its duly elected officers, I. C. James, president, George James, secretary-treasurer, and James F. McKinney, vice-president, and its executive board), filed an answer. The local alleged that its answer was also filed on behalf of its members who desired to contest plaintiffs' suit. Said answer presented first a plea in abatement, in which the local alleged in effect, that plaintiffs had "no right or authority" to bring a suit of this character; that such a suit could be maintained only by the Attorney General, or a District or County Attorney.

Mike Reilly and the International filed a plea of privilege asserting their right to be sued in Dallas County. Subject thereto, and only in the event their plea of privilege was overruled, but expressly without waiving said plea, Reilly and the International filed a plea in abatement, in which they set forth numerous provisions of the constitution and by-laws of the International. Among others, they pleaded section 82 of the International's constitution and by-laws, which, they alleged, provides that when a member has a grievance against a local he shall file a complaint with the secretary-treasurer, and give notice, etc. Said defendants alleged that said section 82 provides, among other things, that an appeal by a member or a local union to the convention of the International, when considered by said convention, should be final and from which there "shall be no further appeal." Said defendants alleged plaintiffs' suit should be dismissed because plaintiffs had not complied with the constitution and by-laws relating to grievances and appeal, and, specifically, that plaintiffs had not alleged that they had filed a copy of the complaint with the general treasurer, nor that any complaint was filed within sixty days from the time the grievance occurred, nor that they had appealed to the International convention, all of which, they alleged, was required by the International's constitution. Reilly and the International further alleged that before the court could take jurisdiction plaintiffs must "allege and establish" that they had exhausted all remedies provided by the constitution and by-laws of the International before appealing to the court, and that the court was without authority to intervene in the internal affairs of said defendants, for all of which reasons plaintiffs' suit should be abated and dismissed. Subject to the plea of privilege, and only in the event it was overruled, and subject to the plea in abatement, and only in the event it should be overruled, Reilly and the International answered by many special exceptions, one of which was that Article 5154a conferred jurisdiction upon the court to hear such a suit only when brought by an enforcement officer named in said statute, to wit, the Attorney General or a District or County Attorney. Reilly and the International further alleged that the executive board of the International, following the applicable provisions of its constitution and in compliance therewith, did remove the officers of the local union and appoint officers in their places; that the plaintiffs had sufficient remedies within the union to secure redress of any alleged grievance, but that plaintiffs had not followed provisions of the constitution and by-laws of the International relating to grievances. They further pleaded res adjudicata by reason of a judgment rendered in the 60th District Court of Jefferson County.

The court refused to hear testimony, sustained the local's plea in abatement and dismissed the case. Plaintiffs have appealed. The judgment recites that there came on to be heard the application of Lundine et al. for a temporary injunction and appointment of a receiver; that plaintiffs appeared in person and by their attorneys; that the local union, George James and James F. McKinney "et al.", appeared by their attorneys; that Reilly and the International "filed their plea of privilege to be sued in Dallas County"; that thereupon plaintiffs in open court stated the nature of their case and offered to submit evidence in support thereof. That the local union, George James and James F. McKinney, "and others represented by O. T. Baker", presented their plea in abatement, which was considered, without the introduction of testimony, whereupon the court sustained said plea and dismissed the case.

As we construe the judgment and the record the only matter presented to and passed on by the court was the local's plea in abatement. The substance of said plea was that such a suit could be maintained only by the Attorney General or a District or County Attorney. As we understand the record, Reilly and the International were not before the court on their plea in abatement. They were still insisting on their plea of privilege. Under such interpretation their plea in abatement filed without waiving their plea of privilege and only in the event their plea of privilege was overruled, which does not appear to have been done, is not to be considered.

The question presented is whether plaintiffs, under the pleadings, may recover any of the relief sought by them as members of the unions, or whether such a suit must be brought by the Attorney General, or a District or County Attorney. Stated differently, it is necessary to decide whether the members of a union could maintain such a suit prior to the enactment of Art. 5154a, Vernon's Ann.Civ.St., and, if so, whether said statute deprived plaintiffs of that right and conferring it solely upon the enforcement officers named in the statute. To answer these questions it becomes necessary to set forth the substance of plaintiffs' petition which covers 26 pages of the transcript.

Plaintiffs alleged that the local is the owner of certain personal property; that the International is the parent association supported by local trade unions chartered by it, one of which is Local 435; that plaintiffs are members in good standing of said local and International; that the locals are required by the constitution and by-laws of the International to collect from each of its members $1 per month for the International; that in addition thereto, the local collected from each of its members $5 per month for the use of the local; that under the laws of the International and local the title to the $5 per month became vested in the local and the International had no interest therein; that said funds were held by the officers of the local for the benefit of the members of the local and in trust for them. Plaintiffs alleged they did not have access to the records of the local, but it had approximately 225 members, a majority of whom were either named as plaintiffs or "are parties hereto by the representation of plaintiffs." That on September 8, 1943, and long prior thereto, in addition to the $1 collected monthly from each member by the local for the International, the members of the local paid into its treasury and to defendants James and McKinney approximately $1,250 per month as dues, assessments, initiation fees, etc.; that said fund was the property of said local and "its members", the title and possession of which was held by James and McKinney as trustees for the local and its members; that prior to September, 1943, it had long been the custom of the local to hold regular meetings twice each month at a meeting place rented for that purpose, and that the local maintained a regular office for the transaction of business; that about one year prior to the institution of this suit I. C. James was elected president, but prior to September, 1943, he abandoned that office and moved from Jefferson County; that McKinney was elected vice-president; that after I. C. James abandoned his office McKinney assumed the duties of president and took charge of said office; that George James was...