Operative Plasterers', Etc., Ass'n v. Case

• Decision Date: 07 September 1937
• Docket Number: No. 6766.,6766.
• Citation: 93 F.2d 56
• Parties: OPERATIVE PLASTERERS' AND CEMENT FINISHERS' INTERNATIONAL ASS'N OF THE UNITED STATES AND CANADA v. CASE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 F.2d 56 (1937)

OPERATIVE PLASTERERS' AND CEMENT FINISHERS' INTERNATIONAL ASS'N OF THE UNITED STATES AND CANADA v. CASE.

No. 6766.

United States Court of Appeals for the District of Columbia.

Decided September 7, 1937.

Charles S. Baker, Benjamin L. Tepper, and Robert H. Marcus, all of Washington, D. C., for appellant.

Arthur G. Lambert, George L. Hart, Jr., and Arthur R. Murphy, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, GRONER, and STEPHENS, Associate Justices.

STEPHENS, Associate Justice.

This appeal involves an action brought in the District Court of the United States for the District of Columbia upon a judgment obtained in the General County Court of Buncombe County, North Carolina. The principal question in the case is whether that judgment was valid in the jurisdictional sense. It is attacked upon the ground that the appellant is an unincorporated association — a trade union — and that such an association cannot be sued or served with process as an entity, as it was here, and upon the further ground that the service of process in the North Carolina suit was not made upon any officer or agent or proper representative of the appellant.

The appellee Case, plaintiff below, alleged in his declaration in substance and effect that: The appellant, Operative Plasterers' and Cement Finishers' International Association of the United States and Canada, defendant below, is an unincorporated voluntary association and labor organization of more than 100,000 members. It has a large number of local unions, and is governed by a constitution and by-laws promulgated by and binding upon it. It is doing business in and has a local union in the District of Columbia. On August 22, 1932, the appellee obtained a judgment in the General County Court of Buncombe County, North Carolina in the sum of $9492 and costs, which judgment is in full force and effect and unpaid. The appellee prayed for judgment in the District Court of the United States for the District of Columbia upon the North Carolina judgment, in the sum above mentioned together with interest and costs of the present suit.

To this declaration the appellant filed two pleas. In the first it set up that the North Carolina judgment was obtained through an action against the appellant in its association name without setting out the names of the members, and without having had process issued against the members, and that neither at the time of the institution of the North Carolina action nor at the time of the judgment therein, was there in force and effect in North Carolina a statute enabling the bringing of an action against an unincorporated association in its association name. In the second plea the appellant asserted that no service of process in the North Carolina suit was had upon any officer of the appellant, or upon any person or agent in its employ, or upon any person upon whom proper service might have been had for the appellant, and that accordingly the North Carolina judgment was a nullity. Under each of its pleas the appellant urged that the North Carolina judgment ought not, because of the facts asserted, receive full faith and credit in the courts of the District of Columbia.

To the first plea the appellee demurred upon the ground that the question whether an unincorporated association may be sued as an entity is purely a procedural matter, and therefore the North Carolina judgment against the Association as an entity is not subject to collateral attack in the courts of the District of Columbia. The trial judge sustained this demurrer in a memorandum in which he said:

"The Court thinks that the first plea presents a question of procedure and not one of substance. United Mine Workers vs. Coronado, 259 U.S. 344, 390 42 S.Ct. 570, 576, 66 L.Ed. 975, 27 A.L.R. 762. The plea presents a question of procedure which could be raised only in the courts of North Carolina before judgment. Such question may not be raised in another jurisdiction in a suit upon a judgment obtained in a sister state. Such a judgment may be attacked only on substantive jurisdictional grounds. Brooks vs. Owen, 200 Iowa 1151 202 N.W. 505."

Upon the second plea issue was joined. Through their respective counsel the parties entered into and filed in the case a stipulation of fact, as follows:

"It is stipulated as fact by the attorneys for the plaintiff and attorneys for the defendant in the above cause that on July 13, 1932, Jesse B. Case filed suit in the General County Court of Buncombe County, North Carolina, a court of superior jurisdiction, against the Operative Plasterers and Cement Finishers International Association of the United States and Canada. That on July 18, 1932, the sheriff of Buncombe County read the summons and delivered a true copy of the same, together with the copy of a verified complaint in the said suit to S. L. Reese, Secretary-Treasurer of Local Union No. 176 of the Operative Plasterers and Cement Finishers International Association of the United States and Canada. That on the 18th day of July, 1932, S. L. Reese was Secretary-Treasurer of Local Union No. 176 of the Operative Plasterers and Cement Finishers International Association of the United States and Canada, which local union exercised local jurisdiction over the City of Ashville, in the County of Buncombe, North Carolina. Trial by jury is expressly waived and trial by the Court is requested in lieu thereof."

The case was tried to the court upon the question of fact presented by joinder of issue on the second plea, to wit, the question whether the service of summons was upon an officer of the appellant or upon a person or agent in its employ, or upon a person upon whom proper service might have been had for it. The testimony of the president of the appellant was taken, the constitution of the appellant was introduced in evidence, and also a certified copy of the record in the North Carolina case, including the summons, complaint, and judgment. The complaint in the North Carolina case set forth as a cause of action in substance and effect that: The plaintiff (appellee) was at one time a member of the defendant association (appellant). While he was a member, and again after he had ceased to be a member, the defendant maliciously, wantonly and without cause, and in violation of the terms of the contract between him and it, and without due process as outlined in the constitution and by-laws, levied fines and assessments against him, put him upon a blacklist, published his name as a delinquent to all members in the United States and Canada, published to his employers that he was upon a blacklist, and requested, and obtained, his discharge from employment, thereby rendering it impossible for him to obtain employment or to keep employed. The record in the North Carolina case shows that there was no appearance by the defendant and that there was accordingly entered a "Judgment by Default and Inquiry" fixing a day certain for inquiry as to the amount of damages. In that judgment the court found as a fact that: ". . . the original of the summons and a copy of the complaint was duly filed on the defendant through its duly constituted agent and representative. . . ."¹ The judgment finally entered after the inquiry also found as a fact that the ". . . summons was duly issued and served on the defendant. . . ."

After receiving this evidence and concluding the hearing upon the merits of the second plea, the court below made general findings of fact in the following terms:

"Upon the issues of fact joined in this cause, the Court finds in favor of the Plaintiff. This finding will be entered by the Clerk to have the same effect as the verdict of the jury, in accordance with the provisions of Sections 70 and 71, Old Code D.C.Code 1929, T. 18, §§ 72, 73."

The defendant (appellant) filed a motion for a new trial. This was overruled, and judgment was then ordered and entered upon the finding of the court in the plaintiff's (appellee's) favor. From that judgment this appeal was taken.

I

The instant suit upon the North Carolina judgment is brought in the District Court of the United States for the District of Columbia under the full faith and credit clause of the United States Constitution providing that: "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State." U.S.Const. Art. IV, § 1, cl. 1 Under that clause the courts of one state need give no greater effect to a judgment of the courts of another than that judgment has in the latter; for example, if a judgment is inconclusive in the state where rendered, it is equally inconclusive in a sister state. 28 U.S.C. § 687 (28 U.S.C.A. § 687), Rev.Stat. § 905; Board of Public Works v. Columbia College (1873) 17 Wall. 521, 21 L.Ed. 687; Robertson v. Pickrell (1883) 109 U.S. 608, 3 S.Ct. 407, 27 L.Ed. 1049; 15 R.C.L. § 407, p. 929. The first question therefore is, was the North Carolina judgment valid according to North Carolina law. The appellant urges that it was not for the reason that under North Carolina law an unincorporated association is not suable as an entity; that is to say, cannot be a party, with the result that judgment against it would be void for lack of jurisdiction over any party defendant. The Supreme Court of North Carolina so held in Tucker v. Eatough (1923) 186 N.C. 505, 120 S.E. 57, upon the faith of Kerr v. Hicks (1911) 154 N.C. 265, 70 S.E. 468, 33 L.R.A.(N.S.) 529, and Nelson v. Relief Department (1908) 147 N.C. 103, 60 S.E. 724. The court in Tucker v. Eatough went so far as to say in respect of an unincorporated association, quoting from Nelson v. Relief Department:

"The `relief department' an unincorporated railroad insurance bureau is not a natural person. It is not a corporate body. It has no legal entity. It is, in the eye of the law, an `airy nothing.' It has no power to contract. Any contract made in its name would be the contract...