Rueb v. Rehder Ford v. Same.

• Decision Date: 28 August 1918
• Docket Number: Nos. 2178, 2179.,s. 2178, 2179.
• Citation: 24 N.M. 534,174 P. 992
• Parties: RUEBv.REHDER et al.FORDv.SAME.
• Court: New Mexico Supreme Court

24 N.M. 534

174 P. 992

RUEB

v.REHDER et al.FORD

v.SAME.

Nos. 2178, 2179.

Supreme Court of New Mexico.

Aug. 28, 1918.

Syllabus by the Court.

Assignments of error considered, and held sufficiently specific.

The records and minutes of a private corporation are admissible to prove its acts; but they are not the only mode of proof. They are prima facie admissible, but may be rebutted by parol. Hence, where the minutes of a voluntary association are silent as to the question of the former trial of a member for the same offense for which he was expelled, as shown by said minutes, it is competent for such member to introduce parol evidence to establish the fact that he had been theretofore tried and acquitted of such alleged offense against the by-law of the association, and also to show that he was expelled without evidence being heard.

If a member of a society is once acquitted on a trial upon charges preferred against him, he cannot be tried again for the same offense, unless the by-laws of the association specifically authorize a second trial therefor.

If, under the by-laws, rules, and regulations of an association, it has no power or jurisdiction to try a member and expel him for a given offense, or if its action is without jurisdiction, or without notice or authority, it does not change the legal status of the member, and the member so unlawfully expelled is not required to appeal within the order, but may resort to the courts for relief.

The constitution and by-laws of a voluntary association constitute the contract between the member and the association, and govern and limit the rights and liabilities of the member and the association. So long as such an association is acting under such rules and regulations, and in accordance therewith, the member must likewise act, as he is required to do under the contract. When, however, the association departs from the letter and spirit of the contract, and does an act which it is not authorized to do under the contract, a member injured by such action is not required to conform to the rules in order to secure relief from such unauthorized action.

Where a member has been once tried and acquitted of charges preferred against him in a voluntary association, and the right to expel him from such association exists only upon conviction, the fact that he was in fact guilty of violating a rule of the association is no defense to an action by him to secure his reinstatement, where he was subsequently retried and found guilty; such second trial being without jurisdiction.

Appeal from District Court, Bernalillo County; Raynolds, Judge.

Actions by John Rueb and by T. J. Ford against Harry J. Rehder and others. The cases were consolidated, complaints dismissed, and plaintiffs appeal. Reversed and remanded.

Where minutes of a voluntary association were silent as to the former trial of a member for the same offense, it is competent for such member to introduce parol evidence that he had been theretofore tried and acquitted.

Albert G. Simms and John F. Simms, both of Albuquerque, for appellants.

A. B. McMillen, of Albuquerque, for appellees.

ROBERTS, J.

This is a consolidated case, made up of two cases which were brought and tried in the district court of Bernalillo county upon the same questions of law and fact. The pleadings, evidence, and final judgment in each case are exactly alike. The purpose of each suit was to enjoin the defendants, who were all the members and the officers of the Rio Puerco Division No. 446, of the Brotherhood of Locomotive Engineers, from refusing to recognize the plaintiff in each case as a member of the said association, and from denying them the rights and privileges of membership therein, and to annul an order made by the defendants expelling plaintiffs from such rights and membership.

The ground upon which relief was sought was that the order of expulsion was null and void, of no force and effect, and illegal, in that plaintiffs were once tried and acquitted of the charge upon which they had been expelled, and that under the constitution, rules, and regulations of the order the association was without power or authority thereunder to try plaintiffs the second time for the same offense; further, that at the second trial, which resulted in plaintiffs' expulsion, no evidence was heard, and plaintiffs were given no opportunity to combat such charges by the introduction of evidence. It was further alleged: That, by reason of membership in the division in question, plaintiffs were entitled to and did carry policies of life and accident insurance in the Locomotive Engineers' Mutual Life & Accident Insurance Company, a corporation organized for the purpose of affording the members of the association, of which plaintiffs had been members, and other similar organizations, opportunity to obtain life and accident insurance in said corporation at terms and rates favorable to members of the association. That plaintiffs had carried policies therein for some years, which were in full force and effect, but which would be subject to cancellation and would be canceled, unless plaintiffs were restored to membership in the local association. A copy of the policy carried in each case was attached as an exhibit to the complaint. Further that the association owned certain property, consisting of insignia, paraphernalia, and personal property, in which the plaintiffs had an interest as members. That plaintiffs' membership in said association, by virtue of the insurance carried by them, was a property right of value, which would be lost without the intervention of the court. The complaint, after setting forth in detail the acts and grievances complained of, alleged that they had exhausted all their remedies within the order.

The answer denied that plaintiffs had been tried twice for the same offense; alleged that they were guilty of a violation of the statutes and rules of the order, the penalty for the specific act, which was set up in the answer, being expulsion from the order, upon a finding of guilty by the local organization; denied that the local association owned any property, except a Bible and a gavel; alleged that plaintiffs had not exhausted their remedies within the order; and asked that the complaint be dismissed.

The court, after hearing evidence on behalf of the appellants, upon motion of counsel for the appellees, dismissed the complaints, upon the ground that appellants had a remedy within the order, and that they could not appeal to the courts for redress until they had exhausted such remedies. From the judgment, this appeal is prosecuted.

[1] At the outset, appellants are met by the contention of appellees that their assignments of error are not sufficient to warrant a review of the proceedings of the district court. Ten separate assignments of error are stated in the assignment filed by appellants. It would unduly lengthen the opinion to set them out. Some of the assignments are not as specific as they should have been, but there are good assignments, which sufficiently present the questions we will consider. The eighth assignment reads as follows:

“That the court erred in refusing to permit the plaintiff to prove that at the second trial of August 4, 1916, the plaintiff pleaded not guilty to the charge of having violated section 35 of the standing rules, and that no testimony was introduced against him, and no evidence was before the division at said meeting, and that the plaintiff was expelled by the defendants at the said meeting upon the ground that they were obliged to expel the plaintiff or lose the charter of the division, and that they [defendants] knew in fact that the Grand Chief had ordered them to expel the plaintiff, and they [defendants] would either have to do so or lose the charter of the division, and that there was no testimony of any kind before the said meeting at the trial of these plaintiffs and up to the time of their expulsion, and there was no evidence produced against plaintiff at said second trial.”

The fifth assignment reads as follows:

“That the court erred in ruling that the plaintiff has a right of appeal within the order from the second trial and expulsion from the order.”

Clearly the eighth assignment was sufficiently specific, and pointed directly to the error sought to be reviewed. The error assigned by the fifth paragraph was the turning point in the case, and we think was sufficient to present the question as to the propriety of the court's ruling.

Appellees cite and rely upon the following cases: Mogollon v. Stout, 14 N. M. 245, 91 Pac. 724; Friday v. Railway Co., 16 N. M. 434, 120 Pac. 316; Schofield v. Territory, 9 N. M. 526, 534, 56 Pac. 306; Pearce v. Strickler, 9 N. M. 467, 54 Pac. 748; Farmers' Development Co. v. Rayado, 18 N. M. 1, 133 Pac. 104. An examination of the cases, however, will show the assignments therein involved fall far short of being as specific as the ones quoted. While holding the two assignments stated to be sufficient, we do not desire to be understood as holding that all the others are insufficient. Some of them are equally good, but the two stated are in fact sufficient to present the decisive questions in the case.

[2] Passing, now, to a consideration of the case on its merits. The first question logically requiring consideration is whether or not the court was in error in not permitting appellants to introduce evidence to show that they had been therefore tried and acquitted by the lodge of the charges upon which they were expelled, and also for the purpose of showing that the order of expulsion was voted without evidence against the appellants, or without appellants having an opportunity to introduce evidence to combat the charges. In order to understand the question properly, it is perhaps advisable to briefly state the facts which appellants desire to prove, the offer of which was refused by the court. Section 35 of the standing rules of the association in...