Varnado v. Whitney

• Decision Date: 17 April 1933
• Docket Number: 30506
• Citation: 166 Miss. 663,147 So. 479
• Court: Mississippi Supreme Court
• Parties: VARNADO v. WHITNEY

147 So. 479

166 Miss. 663

VARNADO v. WHITNEY

No. 30506

Supreme Court of Mississippi

April 17, 1933

Division A

Suggestion Of Error Overruled May 1, 1933.

APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Suit by J. A. Varnado against A. F. Whitney, a nonresident. The Brotherhood of Railroad Trainmen was alleged to be indebted to defendant, and the prayer of the bill was that this alleged indebtedness be subjected to the payment of plaintiff's demand against defendant. A member of the brotherhood filed a motion to quash the process and dismiss the suit, and from a decree quashing the process and dismissing the bill, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Chalmers Potter, of Jackson, for appellant.

There is no such identity between the parties hereto which prevents the maintenance of this suit.

United Mine Workers of America v. Coronado Coal Company, 259 U.S. 344; 66 L. A. 957, 42 S.Ct. 570, 27 A.L.R. 762.

The Mississippi Reports have a number of cases where this organization was sued as a quasi corporation, separate and distinct from the individual members that composes it, on insurance contract.

There is no such identity between Whitney the nonresident defendant and the Brotherbood of Railroad Trainmen so as to prevent the trainmen from being made garnishees in this action.

The sole criteria is whether a person, within the jurisdiction of the court, is indebted to a nonresident party against whom the principal relief is sought.

Susquehana Coal Co. v. Pratt, 251 F. 655; Richardson v. Lacy, 27 La. Ann. 62.

No point is made in the motion to quash because Pierce was not an agent of the Brotherhood of Railroad Trainmen and this being true the endorsement of the sheriff is to be taken as true. If the Brotherhood of Railroad Trainmen can be sued and is for the purpose of this suit, a legal entity, then as Pierce its agent or secretary was found in Mississippi, Whitney could sue in Mississippi for any debt that might be due by the association to him. All of the argument as to the liability of a local lodge to Whitney for his salary or any other obligation that the grand lodge might hold is wholly beyond the mark for the reason that the record shows that Pierce was an agent of the Brotherhood of Railroad Trainmen, the garnishee herein.

Assuming that we are in error about the court taking judicial knowledge that this company or association has not appointed the insurance commissioner agent for process, we most respectfully submit that even if the court takes no judicial notice of the records of the insurance department that, before advantage could be taken of the statute, the record must affirmatively show that this defendant had appointed the commissioner as its agent for process.

Globe & Rutgers Fire Insurance Co. v. Sayle, 107 Miss. 169, 65 So. 125; Continental Casualty Co. v. Gilmer, 146 Miss. 22, 111 So. 741.

Always assuming that such an association as the Brotherhood of Railroad Trainmen is suable, is the statutory method of obtaining service upon fraternal benefit societies pointed out by section 5246 of the Code of 1930, the exclusive method of serving such companies or associations even though the matter in regard to which the suit is brought is not insurance? We respectfully submit first that the method pointed out by section 5246 is not exclusive except in that class of cases concerning which the statute applies.

Morris & Co. v. Scandinavian Insurance Company, 279 U.S. 405, 73 L.Ed. 762.

If the rule announced by the Supreme Court of the United States in the Union Mine Workers case is to be followed, then organizations such as this, will be given a corporate or quasi corporate status and it is the opinion of the writer of this brief that under such circumstances the rule announced by the Code as to service upon any agent thereof should apply.

Christian v. International Association of Machinists, 7 F.2d 481.

Alexander, Alexander & Satterfield, of Jackson, for appellee.

The relation between all parties to the controversy is one of identify, thus disqualifying the complainant from suing, and the defendant from being sued or garnished. Where the garnishee and the defendant are the same, the defendant cannot be summoned as garnishee.

28 C. J., page 51.

Where two parties are jointly liable neither of the parties can be considered a third person in the sense that he is liable as garnishee.

27 La. Ann. 29; Delta Insurance Co. v. Interstate Insurance Co., 113 Miss. 542, 74 So. 420.

The members of the Brotherhood sustain to each other the relation of partnership. This means that a member of the association or partnership is suing another member, and garnishing still a third. Assuming that the last named is a member of the Brotherhood, then one of the members is seeking to sue the partnership.

Karges Furniture Co. v. Amalgamated Woodworkers Union, 2 L.R.A. (N.S.) 788, 793.

The trial court has no jurisdiction over the defendant Brotherhood of Railroad Trainmen as garnishee or otherwise.

At common law, unincorporated, voluntary associations organized for business or other purposes were not considered or recognized as having any other character than that of a partnership in whatever it undertook, and could sue or be sued only in the name of its members and liability had to be enforced against each member. They were not recognized in court by their association name.

Florida Brewing Co. v. Sendoya, 73 Fla. 660, 74 So. 799; Hayman v. Weil, 53 Fla. 127, 44 So. 176.

Under the law such a society cannot contract and be contracted with and sue and be sued, but the officers of such society acting for and on behalf of the society are liable individually.

Johnson v. Howard, 141 So. 573, 576; Karges Furniture Co. v. Amalgamated Woodworkers' Union, 2 L.R.A. (N.S.) 793; United States, etc. v. Lloyds, 291 F. 889; Cahill v. Plumbers, etc., Local 93, 238 Ill.App. 123; 5 C. J. page 1365.

In the absence of legislation a voluntary association of this character is not regarded by law as a person or entity.

Brotherhood of Railroad Trainmen v. Cook, 21 S.W. 1049.

In view of the approval of this common law rule by our state in Johnson v. Howard, and in the absence of statutory authority abrogating the common law rule, it would seem unnecessary to make further citation.

The service of summons on J. E. Pierce is not valid to compel answer by the Brotherhood of Railroad Trainmen.

The status of the Brotherhood is to be adjudged with reference to article 14 of chapter 127 of the Code of 1930.

Christian v. International Association of Machinists, 7 F.2d 481.

If section 5246 does not apply then there is no one on whom process may be served so as to bring the Brotherhood of Railroad Trainmen into court.

The only proceeding filed in response to complainant's bill was the motion to quash, which was filed by Pierce himself under authority of Gullett v. First Christian Church, 154 Miss. 516, as shown in our original brief. This, therefore, narrows the question to whether Pierce is a sufficient and proper agent for service for a defendant who could be indebted to the nonresident Whitney, and who could be sued by Whitney in this state. It is Pierce himself who has made the motion to quash, and if the Brotherhood is suable, then regardless of how process may be served, certainly such summons upon Pierce as Secretary of the independent local lodge is not one of the permissible methods.

OPINION

Smith, C. J.

This is an attachment in chancery under section 173, Code 1930, and the appeal is from a decree quashing the process and dismissing the bill.

The bill of complaint was filed against...