Tyler v. Boot & Shoe Workers' Union

• Citation: 285 Mass. 54,188 N.E. 509
• Parties: TYLER v. BOOT AND SHOE WORKERS' UNION.
• Decision Date: 30 December 1933
• Court: United States State Supreme Judicial Court of Massachusetts

285 Mass. 54

188 N.E. 509

TYLER

v.BOOT AND SHOE WORKERS' UNION.

Supreme Judicial Court of Massachusetts, Plymouth.

Dec. 30, 1933.

Report from Superior Court, Plymouth County; Frederick J. MacLeod, Judge.

Action by Harry Tyler against the Boot and Shoe Workers' Union. Orders were entered denying defendant's motion to dismiss, disallowing its plea in abatement on condition, and overruling its demurrer. On report.

Affirmed in part, reversed in part, and case remanded.

M. J. Robinson, of Boston, and E. J. Derosier, of Brockton, for plaintiff.

H. B. Ehrmann and L. W. Black, both of Boston, for defendant.

RUGG, Chief Justice.

The defendant is described in the writ in this action at law as ‘Boot and Shoe Workers' Union, a voluntary association having a usual place of business in Boston.’ The defendant filed a motion to dismiss, a plea in abatement, and a demurrer. They were heard together. On the plea in abatement evidence was received and a finding made that the named defendant is a ‘voluntary, unincorporated labor association. It is not an ‘association’ or a ‘trust,’ as those terms are defined and used' in G. L. (Ter. Ed.) c. 182.

A motion to dismiss or to quash is a proper form of pleading in actions at law to raise questions of this nature appearing on the face of the record. Smith v. Dexter, 121 Mass. 597, 599;Paraboschi v. Shaw, 258 Mass. 531, 532, 155 N. E. 445;In re Ulmer, 268 Mass. 373, 390, 167 N. E. 749;Adams v. Richardson, 268 Mass. 78, 80, 167 N. E. 254;Lowrie v. Castle, 198 Mass. 82, 83 N. E. 1118. The practice in equity is different where such a motion is irregular and where a defence must be raised by demurrer, plea, or answer. Paraboschi v. Shaw, 258 Mass. 531, 532, 155 N. E. 445;E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N. E. 883;Rothstein v. Commissioner of Banks, 258 Mass. 196, 155 N. E. 7. A plea in abatement is appropriate when reliance is placed upon some fact outside the record as to which evidence may be necessary. Paraboschi v. Shaw, 258 Mass. 531, 532, 155 N. E. 445. It is elementary that a demurrer raises only questions of law apparent on the record. Sullivan v. Judges of Superior Court, 271 Mass. 435, 436, 171 N. E. 490. The objection here raised is not a proper subject for demurrer, since it relates to process and not to pleading. Smith v. Dexter, 121 Mass. 597, 599.

The writ is the foundation of an action at law. To it resort must be had to ascertain the parties. It alone describes the defendant. Eaton v. Walker, 244 Mass. 23, 30, 138 N. E. 798.

No person or legal entity is described as defendant in the writ in the case at bar. The description of the defendant in this writ imports a voluntary unincorporated association. Such an association cannot be a party to litigation. It has no capacity as such to sue or to be sued in its own name alone. Pickett v. Walsh, 192 Mass. 572, 589, 78 N. E. 753,6 L. R. A. (N. S.) 1067, 116 Am. St. Rep. 272,7 Ann. Cas. 638; Herbst v. Fidelia Musical & Educational Corp., 218 Mass. 174, 180, 105 N. E. 629;Hanley v. American Railway Express Co., 244 Mass. 248, 250, 138 N. E. 323;Donovan v. Danielson, 244 Mass. 432, 437, 138 N. E. 811;United Mine Workers of America v. Coronado Coal Co., 259 U. S. 344, 385, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762;Moffat Tunnel League v. United States, 289 U. S. 113, 118, 53 S. Ct. 543, 77 L. Ed. 1069.

A voluntary association ‘under a written instrument or declaration of trust, the beneficial interest under which is divided into transferable certificates of participation or shares' may in restricted and specified instances be sued as if it were a corporation. G. L. (Ter. Ed.) c. 182, §§ 1, 6. In order that an action may be maintained under that statute, the defendant should be so described in the writ as to show in substance that it is...