State ex rel. Glass Bottle Blowers Ass'n of U.S. and Canada v. Silver

• Decision Date: 27 June 1967
• Docket Number: No. 12664,12664
• Citation: 155 S.E.2d 564,151 W.Va. 749
• Court: West Virginia Supreme Court
• Parties: , 56 Lab.Cas. P 51,725 STATE ex rel. GLASS BOTTLE BLOWERS ASSOCIATION OF the UNITED STATES AND CANADA, an unincorporated association et al. v. Gray SILVER, Judge of the Circuit Court of Morgan County, West Virginia et al.

Page 564

155 S.E.2d 564

151 W.Va. 749, 56 Lab.Cas. P 51,725

STATE ex rel. GLASS BOTTLE BLOWERS ASSOCIATION OF the UNITED STATES AND CANADA, an unincorporated association et al. v. Gray SILVER, Judge of the Circuit Court of Morgan County West Virginia et al.

No. 12664.

Supreme Court of Appeals of West Virginia.

Submitted May 23, 1967.

Decided June 27, 1967.

Syllabus by the Court

1. In the absence of a statue or rule of practice authorizing suit by an unincorporated association, such association may not institute or maintain an action as such in its own name; but to protect the rights of an unincorporated association against invasion by third parties, the State of West Virginia, as the representative of such unincorporated association suing for its use and benefit and acting in its behalf, may institute and maintain a prohibition proceeding to protect the rights of such unincorporated association.

2. In the absence of a statute or rule of practice authorizing such procedure, an unincorporated society or association can not be sued as an entity by its name, nor can judgment be rendered against it merely by name; but to confer jurisdiction, the members composing the association, or some of them, must be named as parties and process served upon them individually.

3. 'As a general rule any person who will be affected or injured by the proceeding which he seeks to prohibit is entitled to apply for a writ of prohibition; but a person who has no interest in such proceeding and whose rights will not be affected or injured by it can not do so.' Point 6, syllabus, State ex rel. Linger v. Colunty Court of Upshur County, 150 W.Va. 207 (144 S.E.2d 689).

Sprouse, McIntyre & Louderback, James B. McIntyre, Eugene R. Hoyer, Charleston, for relators.

Clarence E. Martin, Jr., Martinsville, for respondents.

HAYMOND, Judge.

In this original proceeding in prohibition instituted in the name of the State of West Virginia, on the relation of the petitioners. Glass Bottle Blowers Association of the United States and Canada, an unincorporated association, Local Union No. 77 of the Glass Bottle Blowers Association of the United States and Canada, an unincorporated association, Local Union No. 27 of the Glass Bottle Blowers Association of the United States and Canada, an unincorporated association, and Local Union No. 197 of the Glass Bottle Blowers Association of the United States and Canada, an unincorporated association, the petitioners seek a writ to prohibit the Honorable Gray Silver, Judge of the Circuit Court of Morgan County, and Pennsylvania Glass Sand Corporation, a corporation, from continuing and perpetuating a preliminary injunction issued against the petitioners and Frank Carter, individually and as representative and agent of the Glass Bottle Blowers Association of the United States and Canada, an unincorporated association, and from granting a motion of that corporation to add additional parties to that action, and from any further proceedings in such action until the determination of this proceeding in this Court.

Upon the petition filed April 27, 1967 and its exhibits, consisting of a copy of the complaint in the civil action, a copy of the preliminary injunction issued April 17, 1967 enjoining the petitioners from engaging in unlawful picketing and performance of other acts set forth in such injunction, a copy of the motion of the petitioners to dissolve such injunction, a copy of the motion of the plaintiff in that action to add as additional parties to the action twenty five persons who are members of Local Union No. 197, thirty three persons who are members of Local Union No. 27, and seventy persons who are members of Local Union No. 77 of the petitioner Glass Bottle Blowers Association of the United States and Canada, and one other person, and a copy of the order of the circuit court granting the motion to add additional parties and refusing the motion to dissolve the preliminary injunction, this Court suspended further proceedings in the action in the circuit court and issued a rule returnable May 23, 1967, at which time this proceeding was submitted for decision upon the petition and its exhibits, the demurrer of the defendants, the separate answer of each defendant to the petition, the exhibits with the answer of the corporate defendant, and the briefs and the oral arguments in behalf of the respective parties.

The civil action instituted in the circuit court is not a class action, and though Frank Carter, one of the defendants who has not been duly served with process in the action, is designated and made a defendant individually and as representative and agent of the international union, Glass Bottle Blowers Association of the United States and Canada, there is no allegation in the complaint that indicates that Carter was sued in behalf of the designated local unions or their members. On the contrary the local unions, as unincorporated associations, are made defendants and proceeded against as such and by name.

The material facts are not disputed and the questions presented for decision are questions of law.

In support of the application for the writ in this proceeding the petitioners contend that each of the petitioners, being an unincorporated association, can not be sued as an entity and judgment can not be rendered against it by name in this jurisdiction and that the circuit court was without jurisdiction to add additional parties to the civil action without notice or amendment of the complaint after the preliminary injunction had been granted against the petitioners and Carter.

On the contrary the defendants assert that though, with respect to the legal question raised by the demurrer to the petition, the petitioners, as unincorporated associations, can not sue or be sued as such and can not maintain this proceeding, nevertheless under the provisions of Rule 23 of the West Virginia Rules of Civil Procedure and the decisions of the Federal Courts, the petitioners, though unincorporated associations, may be sued both in a class action and by name as such unincorporated associations; and that the circuit court, having jurisdiction of the subject matter and the action having been instituted when process was issued against the petitioners and Frank Carter, as an individual though not served as to him, had the power and authority under Rule 21 of the West Virginia Rules of Civil Procedure to add additional persons as defendants and that its action in that respect can not be disturbed or interfered with in a proceeding in prohibition.

There is no merit in the contention of the defendants that this proceeding in prohibition can not be maintained against them. Though the defendants deny that the well established general rule, that in the absence of an enabling or permissive statute or rule of practice an unincorporated association can not sue or be sued, precludes the petitioners from being sued as unincorporated associations in the civil action in the Circuit Court of Morgan County, the defendants assert that if the petitioners can not be sued as defendants in that case, then, because of the application of the foregoing rule, this proceeding can not be maintained against the defendants by or for the petitioners. Notwithstanding the above stated rule, it is clear that an unincorporated association may protect its rights against third persons in legal proceedings if such association follows the proper procedure as the petitioners, as such associations, have done in this proceeding. In 6 Am.Jur.2d, Associations and Clubs, Section 51, the text, supported by the decisions of many appellate courts in numerous jurisdictions, contains this language: 'An association may protect its rights against third persons by instituting legal proceedings, although in the absence of statutory authority for bringing suits in the name of an unincorporated association or statutory recognition of such bodies as legal entities, such actions must be brought in the name of all the members or by some person acting in a representative capacity, and not in the name of the association.'

The instant proceeding is not instituted in the name of the unincorporated associations or of any of them but is brought in the name of and by the State of West Virginia on the relation of and for the use and benefit of the petitioners and this action may be maintained by the State acting in a representative capacity for the petitioners. The petitioners have an interest in the proceeding to protect them against the enforcement of an injunctive order which they assert is void for lack of jurisdiction in the circuit court to proceed against them as parties and to issue and enforce such order. The State, in its capacity as sovereign, also has an interest to prevent any of its courts from acting without jurisdiction or in excess of the jurisdiction conferred upon it. State ex rel. Collier v. County Court of Mingo County, 97 W.Va. 615, 125 S.E. 576. In the opinion in that case this Court, with relation to the writ of prohibition, used this language: 'At common law the relator need have no personal interest in the proceeding sought to be prohibited. The writ would issue upon the application of a stranger to the record of the suit or proceeding sought to be prohibited. The original theory upon which the writ issued was that where an inferior court usurped jurisdiction or exceeded its jurisdiction it acted in contempt of the sovereign--the fountain of justice and the source of jurisdiction. In modern practice the state stands in the relation of sovereign; so that any court, proceeding in excess of the jurisdiction conferred upon it, in principle acts in contempt of the state. 2 Spelling's Inj. and Ex.Rem. §§ 1745, 1746; High's Ex.Rem. § 779; Mayo v. James, 12 Grat. (Va.) 17; Worthington v. Jeffries, L.R. 10 C.P. 379; State v. Burckhart, 87 Mo. 533; Thomson v. Tracy, 60 N.Y. 31; State v. Superior Court, 7 Wash. 77 (34 P. 430); 7 Comyn's Digest ...