Teamsters Local Union No. 5 v. Tasty Baking Co.

• Decision Date: 15 November 1960
• Docket Number: No. 5106,5106
• Citation: 124 So.2d 355
• Parties: TEAMSTERS LOCAL UNION NO. 5, Affiliated With International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, v. TASTY BAKING COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 355

124 So.2d 355

TEAMSTERS LOCAL UNION NO. 5, Affiliated With International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, v. TASTY BAKING COMPANY.

No. 5106.

Court of Appeal of Louisiana, First Circuit.

Nov. 15, 1960.

Emile M. Weber, Baton Rouge, for appellant.

D'Amico & Curet, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, JONES

LOTTINGER, Judge.

This is a suit wherein the petitioner seeks an injunction against the defendant, enjoining them from doing certain things which is allegedly in violation of a contract between the petitioner and the defendant. The Lower Court originally granted a Temporary Restraining Order, as prayed for by the petition of petitioner; the defendant thereupon filed a Motion to Dissolve the Temporary Restraining Order, based upon grounds which are set forth therein, the main ground, for the purpose of this opinion, being that the petitioner is an unincorporated association and is unable to appear in Court upon a petition which fails to name all the members thereof. The Lower Court awarded judgment in favor of defendant, and dissolved to Temporary Restraining Order, and awarded attorney fees in the amount of Seven Hundred Fifty ($750.00) Dollars. The petitioner has appealed.

The grounds upon which the injunction was sought by the petitioner are now moot, the only question before the Court is whether or not the Lower Court was correct in dissolving the Temporary Restraining Order and awarding defendant attorney fees. The question to be determined, therefore, is whether an unincorporated association may appear as party plaintiff in a suit without joining all members thereof as petitioners. In the petition, the petitioner is represented by its business agent who, according to the record, had no authority to so appear.

Article 446 of the LSA-Civil Code provides as follows:

'Corporations unauthorized by law or by an act of the Legislature, enjoy no public character, and can not appear in a court of justice, but in the individual name of all the members who compose it, and not a political body; although these corporations may acquire and possess estates, and have common interests as well as other private societies.'

The defendant has cited several cases which hold that an unincorporated association can be sued without naming all the individual members thereof in the petition. In that instance, however, the unincorporated association is a party defendant. It is true that in Hanson v. International Union of Operating Engineers, La.App., 79 So.2d 199, 205, we held that an unincorporated association could be sued for an injunction without individually citing each member thereof. Our decision, however, was based upon the reason that 'time is of the essence in the nature of the relief prayed for in this case (and) to require the ascertainment of individual membership of an unincorporated association and thereafter individual citation as conditions precedent to the granting of relief,--and thereby require plaintiff to gather information almost exclusively within the knowledge of defendants without whose help it would be impracticable or perhaps even impossible to gather, and from whom hindrance and obstruction, rather than co-operation, could be reasonably anticipated,--would be tantamount to a denial of relief.' Douglas Public Service Corporation v. Gaspard, 225 La. 972, 74 So.2d 182.

On the other hand, jurisprudence has been cited that an unincorporated association may not file suit except in the individual name of each member thereof. Executive Committee of French Opera Trades Ball v. Tarrant, 164 La. 83, 113 So. 774, 53 A.L.R. 1233; State ex rel. Doane v. General Longshore Workers, La.App., 61 So.2d 747.

It,...