Tucker v. Eatough

• Decision Date: 21 November 1923
• Docket Number: 444.
• Parties: TUCKER v. EATOUGH.
• Court: North Carolina Supreme Court

120 S.E. 57

186 N.C. 505

TUCKER v. EATOUGH.

No. 444.

Supreme Court of North Carolina

November 21, 1923

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by Philous E. Tucker against Henry Eatough, individually and as agent for the United Textile Workers of America, an unincorporated association. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The rule that a demurrer does not lie for superfluous parties does not dispense with the requirement that before a party named as defendant can be proceeded against it must be served with summons and possess legal capacity to be sued.

This action was begun May 11, 1923, by the issuance of summons against "Henry Eatough individually and as agent and organizer of and representing the members of the United Textile Workers of America, an unincorporated association," but when the complaint was filed it disclosed that the purpose of the action was to sue the United Textile Workers of America and said Henry Eatough for $10,000 damages for an alleged libel issued by him. It appears from the complaint of the plaintiff as well as in the summons that the United Textile Workers of America is an unincorporated association, and service was made on Eatough alone. The case coming on to be heard before Harding, J., upon the complaint and demurrer, the court "being of the opinion upon the pleadings filed that the defendant, United Textile Workers of America, is not properly before the court, the demurrer is sustained," and the plaintiff excepts.

William L. Marshall, of Charlotte, for appellant.

J Frank Flowers, of Charlotte, for appellee.

CLARK C.J.

In the summons the sheriff was commanded "to summon Henry Eatough and Henry Eatough as agent and organizer of and representing the members of the United Textile Workers of America, an unincorporated association, defendants in the above action." If the "United Textile Workers of America" had been a corporation the service would have been invalid (C. S. § 483 [1]), and the action should have been dismissed as to them by the judge ex mero motu. As the summons recites that they are unincorporated, for a still stronger reason the summons should have been dismissed. In either event the action of the judge would have been correct.

The United Textile Workers of America did not appear, and could not, for they had no legal or actual existence, and there was and could be no service on any one as to them. The demurrer by whomsoever filed was not and could not be an acknowledgment of service by any one, and the court could act ex mero motu upon the allegation of the plaintiff in the summons and in the complaint that the party attempted to be sued was unincorporated, and the return of the sheriff that there had been no service upon any one except Henry Eatough.

The complaint avers that Henry Eatough issued a printed circular that was libelous and reflected on the plaintiff, and that as he was the agent of the said unincorporated association said association is responsible, without naming any of them, or service on any of them, and asks for $10,000 damages out of said Henry Eatough and said unincorporated association, and naming no one and service being had on no one except said Henry Eatough.

It has been held by our court that unincorporated associations cannot be sued in the manner attempted in this case, and it has been held by various other courts also that voluntary unincorporated associations have no separate legal existence; that they cannot make contracts or be sued as an association except through the individuals who compose its membership. It has been held in some of the equity courts of this country that, where some of the members of an unorganized body have been made parties, proceedings will lie against them, but this rule is only applicable in those courts after sundry members have been made parties, and in this case none of the members of the alleged United Textile Workers of America have been made parties, and even the equitable doctrine of virtual representation adopted by the chancery courts in some other jurisdictions cannot apply.

In this state our statute does not even go to that extent. C. S. § 457, which merely provides for the joinder of parties as follows:

"When the question is one of a common or general interest of many persons, or where the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all."

But that is merely permissive to them, and clearly does not apply to the circumstances of this case. Here Eatough is sued as an individual and as agent of the United Textile Workers. No member of the union is in court or even named as a defendant. Eatough alone is sued, first as an individual, and second as alleged "agent or organizer of the union"; but it is not even alleged that he is a member, and, on the contrary, the complaint avers that the union is composed of a large number of individuals who are not incorporated. It does not appear that any one is authorized to represent them.

In Abbott v. Hancock, 123 N.C. 99, 31 S.E. 268, Sullivan v. Field, 118 N.C. 358, 24 S.E. 735, and Winders v. Southerland, 174 N.C. 235, 93 S.E. 726, cited by the plaintiff, it was held that a demurrer does not lie for superfluous parties; but this does not dispense with the requirement that before a party named as defendant can be proceeded against it must be served with summons and possess legal capacity to be sued.

In Kerr v. Hicks, 154 N.C. 268, 70 S.E. 468, 33 L. R. A. (N. S.) 529, it is said:

"A voluntary association has no existence or power except as contained in its former articles of agreement or established by custom, acquiesced in by the parties to it."

The complaint in this case shows plainly that the action was brought against the association, and in this state only natural or artificial persons can be brought into court...