Robinson v. Nick

• Decision Date: 06 February 1940
• Citation: 136 S.W.2d 374,235 Mo.App. 461
• Parties: WILLIAM ROBINSON ET AL. (PLAINTIFF), RESPONDENTS, v. JOHN P. NICK ET AL. (DEFENDANTS), APPELLANTS; WILLIAM P. CANAVAN ET AL., INTERVENORS, APPELLANTS
• Court: Missouri Court of Appeals

136 S.W.2d 374

235 Mo.App. 461

WILLIAM ROBINSON ET AL. (PLAINTIFF), RESPONDENTS, v. JOHN P. NICK ET AL. (DEFENDANTS), APPELLANTS; WILLIAM P. CANAVAN ET AL., INTERVENORS, APPELLANTS

Court of Appeals of Missouri, St. Louis

February 6, 1940

Motion for rehearing overruled February 20, 1940.

Writ of certiorari denied by Supreme Court April 2, 1940.

Appeal from Circuit Court of City of St. Louis.--Hon. Ernest F Oakley, Judge.

AFFIRMED.

Order affirmed.

Paul Dillon and Sigmund M. Bass for appellants (defendants).

(1) Plaintiffs' petition does not state a cause of action for the reason that plaintiffs have no personal interest in the fund for which they seek an accounting and for which they seek a temporary receiver pending said accounting. State ex rel. Kopke v. Mulloy, 328 Mo. 1. (2) Plaintiffs did not exhaust the remedies within their own organization and they are bound to do so before they can seek relief in a court of equity. 5 Cyc. 1341; State ex rel. v. Medical Society, 91 Mo.App. 76; Crutcher v. Order of Railway Conductors, 151 Mo.App. 622, 630; Mulroy v. Knights of Honor, 28 Mo.App. 463; Hall v. Moran, 293 S.W. 435; Olear et al. v. Haniak et al., 235 Mo.App 249. (3) A court of equity has no power to appoint a receiver to operate a labor union. (4) The constitution, rules and by-laws of a voluntary association are binding on the members thereof, and the members are bound to exhaust the remedies within their own organization before they can apply to a court of equity for relief. Willoughby v. Hildreth, 182 Mo.App. 80; Missouri Bottlers' Assn. v Fennerty, 81 Mo.App. 525; State ex rel. v. St. Louis Medical Society, 91 Mo.App. 76; Kuhl v. Meyer, 42 Mo.App. 474; Hammerstein v. Parsons, 38 Mo.App. 332; Konta v. Stock Exchange, 189 S.Ct. 26; 5 Cyc. 1341; Crutcher v. Order of Railway Conductors, 151 Mo.App. 622, l. c. 630; Mulroy v. Knights of Honor, 28 Mo.App. 463; Hall v. Moran, 293 S.W. 435; Olear et al. v. Haniak et al., 235 Mo.App. 249. (5) All cestui que trusts are necessary parties in the proceedings involving the trust fund. Leyden et al. v. Owen, 150 Mo.App. 102; St. Paul & Kansas City Short Line v. U. S. Fid. & Guar. Co., 105 S.W.2d 14; Aalco Laundry & Clng. Co. v. Laundry Linen & Towel Chauffeurs & Helpers Union, 115 S.W.2d 89; American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions, 90 F. 598; Breimeyer et al. v. Star Bottling Co., 136 Mo.App. 84.

Grimm, Mueller & Roberts for appellant, intervenors.

(1) Bushman v. Bushman (Mo.), 279 S.W. 122; Commonwealth Finance Corp. Mo. Motor v. Bus Co. (Mo.), 233 S.W. 167. (2) Where petition states no cause of action, there is no main cause pending and the court is without power to appoint a temporary receiver and to receive evidence under such a petition. State ex rel. Lund & Sager v. Mulloy (Mo.), 49 S.W.2d 1; Laumeier et al. v. Sun Ray Prod. Co. (Mo.), 50 S.W.2d 640; 49 C. J. 132, sec. 140. (3) Allegations of brand, conspiracy, etc., in a petition seeking appointment of a receiver, if in general terms, do not sufficiently state facts authorizing court to permit introduction of evidence, or authorize appointment of temporary receiver. Bushman v. Bushman, 279 S.W. 122; Lundberg v. Equitable Fire Marine Ins. Co., 285 S.W. 741; Stifel Brewing Co. v. Weber, 194 Mo.App. 605; Goodson v. Goodson, 140 Mo. 206. (4) To authorize appointment of temporary receiver it must appear that such action is necessary to meet a present and urgent condition and to prevent imminent, irreparable injury or loss to the funds, property, etc., in question. Bushman v. Bushman, 279 S.W. 122; Clark on Receivers (2 Ed.), p. 204; State ex rel. Hadley v. Peoples, 197 Mo. 574; Helm v. Talmadge et al., 40 S.W.2d 496. (5) Those seeking the appointment of a temporary receiver must establish their clear, direct, proprietary interest in the property for which a receiver is sought. This interest must be such as will be materially and irreparably injured unless a temporary receiver is appointed. Clark on Receivers (2 Ed.), sec. 180, p. 205; Kansas City v. Markham, 99 S.W.2d 28; Sedberry v. Gwynn (Mo.), 222 S.W. 783; 53 C. J. 27-28; 23 R. C. L., p. 13. (6) The constitution, rules and regulations of a voluntary association are binding on the members thereof. 5 C. J. 1341-2, secs. 25, 26 and 29; Galvin v. Brotherhood of American Yeomen (Mo. App.), 232 S.W. 1058; State ex rel. Mayfield v. St. Louis Medical Society, 91 Mo.App. 76; Missouri Bottlers' Association v. Fennerty, 81 Mo.App. 525. (7) The members, being bound by their constitution and by-laws, are required to resort to and utilize all remedies, procedures, rights and privileges afforded them under such constitution and by-laws for the redress of their alleged complaints, grievances and difficulties before resorting to the civil courts. 5 C. J. 1364, sec. 101; Connelly v. Mutual Benefit Assn., 58 Conn. 552, 9 L.R.A. 428, 18 Am. St. Rep. 296; Hall v. Morrin (Mo. App.), 293 S.W. 435; Shaw v. Amer. Ins. Union (Mo. App.), 33 S.W.2d 1052; Webster v. Rankins et al. (Mo. App.), 50 S.W.2d 746; State ex rel. Baumhoff v. Taxpayers' League of St. Louis County (Mo. App.), 87 S.W.2d 207.

Roessel & Minton and Raymond M. Freed for respondents, plaintiffs.

(1) Plaintiffs' petition states a cause of action. It is a well-established rule in equity suits that a few members of a class or group of persons whose interests are common may represent all members either as plaintiffs or defendants. Lilly v. Tobein, 103 Mo. 477; Aalco Laundry, etc., v. Local No. 136, 115 S.W.2d 89; Harger v. Barrett, 5 S.W.2d 1100; American Steel & Wire Co. v. Wire Drawers, etc., Union, 90 F. 598; Biller v. Egan (Ill. App. 1937), 8 N.E.2d 205. (2) Failure to exhaust remedies within an organization provided by its constitution will not prevent equity in taking jurisdiction and appointing a temporary receiver where, under the facts, it is shown the organization has failed to comply with the requirement of its own constitution with respect to the matter at issue, and where plaintiffs by intimidations and threats are prevented from using the tribunals of the organization, and, in any event, where the pursuit of such remedies would be futile or useless. Webster v. Rankins, 50 S.W.2d 746; Swain v. Miller, 72 Mo.App. 446; Slater v. Supreme Lodge K. & L. of H., 76 Mo.App. 387; Lo Bianco v. Cushing (N.J.), 177 A. 102, Affd. 182 A. 874; Kunze v. Weber, 188 N.Y.S. 644; Local 373, etc. v. International Assoc. of Bridge, Structural & Ornamental Ironworkers (N.J.), 184 A. 531; Collins v. International Alliance of Theatrical & Stage Employees, 182 A. 37; Neal v. Hucheson, 160 N.Y.S. 1007. (3) The evidence reveals facts sufficient to make a prima-facie case justifying the appointment of, and the refusal to revoke the appointment of, a temporary receiver. Where a trial court has exercised a wise, judicious discretion for the promotion of justice, the appointment of a temporary receiver must be approved. Gross mismanagement, extortion, abuse of authority and misappropriation of funds compel the appointment of a temporary receiver to serve the purpose of equity. Kunze v. Weber, 188 N.Y.S. 840; Oakes, Organized Labor & Industrial Conflicts, p. 37; Collins v. International Alliance of Theatrical Stage Employees, 182 A. 37; Mullins et al. v. Merch. Drivers Local No. 841, 185 A. 485; Bushman v. Bushman, 279 S.W. 122.

BENNICK, C. Hughes, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.

This is a consolidated case embracing two separate appeals from the order of the Circuit Court of the City of St. Louis refusing to revoke an interlocutory order appointing a receiver.

The case grows out of an internal controversy having to do with the affairs of the St. Louis Moving Picture and Projecting Machine Operators' Union No. 143, a voluntary, unincorporated association, which is an affiliate of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, likewise a voluntary unincorporated association. The order appointing a receiver was made auxiliary to the final determination of the principal issues in the case in which the relief prayed for includes, among other things, the ouster of defendants from the control and management of the local union, and an accounting of its funds.

The suit was originally instituted by nineteen members of the local union, who, at subsequent stages in the proceedings, were thereafter joined as parties plaintiff by forty-seven other members, including twenty-two out of an aggregate of one-hundred-three members who had previously been allowed to intervene in the case, and whose status, as intervenors, was antagonistic to that occupied by plaintiffs, in that their intervention, though for the alleged protection of their own interests in the controversy, had nevertheless involved a resistance to plaintiffs' alleged rights.

The defendants in the case are John P. Nick and Clyde A. Weston, the former the First Vice-President of the International Alliance, and the latter its representative, both of whom are now in sole and complete charge of the affairs of the local union pursuant to an order to that effect from one George E. Browne of Chicago, Illinois, the President of the International Alliance. Browne was also named as a codefendant in the case, but, being a nonresident, no service of process could be had upon him. Both Nick and Weston are themselves members of the local union, though in the case of Weston, who was originally a member of the East St. Louis local, it appears that he was never voted upon for membership in the local union nor required to pay the initiation fee of $ 300, but instead was merely issued a card upon the order of Nick alone, after the latter had assumed charge of the local union's affairs.

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