Graves v. District Grand Lodge No. 18 ( 1925 )

Atkinson and Gilbert, JJ., dissenting.

This case is not a continuation of the case decided by this court and reported in Graves v. District Grand Lodge, 155 Ga. 147 (supra). Since we are not dealing with the same ease, the decision in the last-named case does not fix the law of this case. We dissent from the judgment of reversal in this case, as we did in Graves v. District Grand Lodge, 155 Ga. 147. The ground of our dissent in that case was not stated, but it was that the plaintiffs, A. Graves et al., were not incorporated, and consequently that the act of 1909 (Civil Code (1910), §§ 1993, 1994) did not protect them in the use of the name, as contended by them. It was our opinion that the ruling in the case of Faisan v. Adair, 144 Ga. 797 (87 S. E. 1080, Ann. Cas. 1918A, 243), was controlling, where it was held: “The act of 1909 (Civil Code of 1910, §§ 1993, 1994), for the protection of any benevolent and other organization which is incorporated [emphasis ours], against others using or adopting its name, style, or emblems, can not be invoked by voluntary associations.” The petition in the present case of A. Graves et al. v. District Grand Lodge No. 18, etc., in the first paragraph alleged: “The defendant is a corporation chartered under the laws of said State, with its principal office and place of business in Eulton County, Georgia.” In the third paragraph of the petition it is alleged: “Plaintiffs are the executive officers of a voluntary association,” etc. In these circumstances, the defendants being incorporated and the plaintiffs not incorporated, the statute, while protecting the defendants, did not protect the plaintiffs.