Baskins v. United Mine Workers , 150 Ark. 398 ( 1921 )

Hart, J.

(after stating the facts). The judgment of the circuit court was correct. There is no principle better settled than that an unincorporated association cannot, in the absence of a statute authorizing it, be sued in tis society or company name, but all the members must be made parties, since such bodies have, in the absence of statute,- no legal entity distince from that of their members. 5 C. J. 1369; Karges Furniture Co. v. Amalgamated Woodworkers’ Local Union (Ind.) 2 L. R. A. (N. S.) 788; St. Paul Typothetae v. St. Paul Bookbinders’ Union (Minn.) 3 Ann. Cas. 695. The common-law rule is recognized and followed by an unbroken line of authorities from many States which are cited in a case note to 3 Ann. Cas. at p. 699. The common-law rule was recognized by this court in Lewelling v. M. W. W. Underwriters, 140 Ark. 124. In that ease there was a statute providing for suits against certain insurance associations under their society name.

This is an action at law, and the equity doctrine of virtual representation has no application. There is with-' in the power of a court of equity to name as defendants in certain classes of cases a few individuals who are in fact the -representatives of a large class having a common interest or a common right- — a class too large to he brought into court by a service on the individuals composing the class. See 20 R. C. L. p. 672; 5 C. J. p. 1371, and case note to Ann. Cas. 1913-C at p. 655, and Pomeroy’s Code Remedies (4 Ed.) par. 285-291.

It is the contention of counsel for appellants that § 1089 of Crawford & Moeses’ Digest applies to both legal and equitable actions since no limitation is contained in its language. On the other hand, it is the contention of counsel for appellee that the section of the statute is a re-enactment of the .rule which already prevailed in equity, and is to he given a construction which will make it identical with the pre-existing equity doctrine. We need not decide this question for the reason that there was no attempt to comply with the statute. The section reads as follows: “Where the question is one of a common interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court within a reasonable time, one or more may sue or defend for the benefit of all.”

No attempt was made by appellants to sue certain persons as defendants who were in fact the representatives of a large class having a common interest. The suit was against the association itself by its society name. It is true, service was had upon the president of the district union in whose territory the tort is alleged to have been committed, but the president was not sued as an individual, or as the president of the district union. The United Mine Workers of America was sued by its society name, and this, as we have already seen, could not be done, in the absence of a statute authorizing it. If tlie United Mine Workers of America could not be sued by its society name, service of summons on one of its agents is insufficient for the purpose of bringing the association into court, in the absence of a statute authorizing it. If appellants had sued certain individual members of the' association as the representatives of all the class, then the application of the section of the statute just quoted to legal as well as equitable actions would be involved, but our statute does not authorize the bringing of actions against unincorporated associations in their common name.

In Curators of Central College v. Bird, 148 Ark. 323, the court held that a suit cannot be maintained by the curators of a college where they are not named as individuals or not alleged to be a corporation. The complaint in this case alleged that certain named persons are officers of the union, but they are not sued as individuals or as representatives of a class. The United Mine Workers of America is sued by its society or common name.

Again it is insisted that the judgment should be reversed because the suit is authorized under chapter 175 of Crawford & Moses’ Digest relating to Trade Unions. We do not think that this chapter of the digest has any application under the facts of the present case. It provides that labor unions may adopt a label and may proceed by a suit to enjoin the unauthorized use, display, and sale of any imitation thereof. Statutes of this sort, being-in derogation of the common law, are strictly construed and the prescribed method of procedure can only be followed in the action designated in the statute. The present action does not come within the class mentioned in chapter 175 of Crawford & Moses’ Digest.

The result of our views is that the judgment of the circuit court was correct, and must be affirmed.