Martin v. Local 71, International Brotherhood of Teamsters , 248 N.C. 409 ( 1958 )

Parker, J.

It seems apparent that all of Judge Pless’ orders and decrees, though dated 26 August 1957, by consent of the parties were signed by him on 30 September 1957 out of term. The record states that the first notice of these decrees and orders had by any of the defendants was when defendants’ counsel received on 2 October 1957 a letter from plaintiffs’ counsel enclosing copies of these decrees and orders. Judge Pless signed the defendants’ exceptions and appeal entries on 9 October 1957.

The Local Union assigns as errors the refusal of Judge Pless to dismiss the action against it for the reason that no service of process has been had upon it, and it is not before the court, and that Judge Pless did not find the facts in respect to the motion.

The complaint alleges that the Local Union is an unincorporated labor union, which represents employees and collects dues therefor in the State, with its principal office and place of business in Mecklen-burg County, and that A. L. Gunter and Edward Hargett are officers and agents of it, and residents of the State.

At common law unincorporated labor unions, having no existence separate and distinct from its members, cannot sue or be sued as a legal entity. Stafford v. Wood, 234 N.C. 622, 68 S.E. 2d 268.

An unincorporated labor union doing business in North Carolina by performing acts for which it was formed can sue and be sued as a separate legal entity in the courts of this State, and may be served with process in the manner prescribed by statute. G.S. 1-69.1; G.S. 1-97(6); Construction Co. v. Electrical Workers Union, 246 N.C. 481, 98 S.E. 2d 852; Stafford v. Wood, supra.

The Local Union in making its motion to dismiss the action against it, asked the court to find the facts upon which it based its ruling on the motion. Judge Pless found no facts on this motion to dismiss, and thereby committed error.

This Court said in Youngblood v. Bright, 243 N.C. 599, 91 S.E. 2d 559, in respect to whether an unincorporated labor union is subject to suit under the provisions of G.S. 1-97(6); “It was necessary to decision that the court consider evidence and find the facts as to whether defendant Union was doing business in North Carolina by performing acts in this State for which it was formed. Whether the facts alleged in the verified complaint, as to the presence and activities of defendant Union in North Carolina, if found to be true, would constitute doing business in this State within the meaning of G.S. 1-97 (6), is a question not now before us.”

There is nothing in the record to show that the Local Union, if doing business in this State by performing any of the acts for which it was formed, has failed to appoint an agent upon whom process can be served. It is ordered that the order denying the defendant Union’s motion to dismiss the action against it be vacated, and the motion to dismiss is remanded for further hearing, so that the court below can hear evidence, find the facts, and decide as to whether or not the defendant Union has been properly served with process, and is or is not subject to suit as a legal entity under the provisions of G.S. 1-97(6).

Construction Co. v. Electrical Workers Union, supra, relied upon by plaintiff is distinguishable. From evidence introduced in the case, and from defendant’s joint answer introduced in evidence in the case, it clearly appears that the defendant Local Union is an unincorporated labor union, which is doing business in North Carolina by performing acts for which it was formed.

If upon a further hearing the court below should decide that the defendant Union has not been properly served with process, or is not subject to suit as a legal entity, the questions of law raised by its demurrer to the complaint, and the question as to whether a temporary injunction should be issued against it, its officers and agents, are moot questions. This Court said in Poore v. Poore, 201 N.C. 791, 161 S.E. 532: “It is no part of the function of the courts, in the exercise of the judicial power vested in them by the Constitution, to give advisory opinions, or to answer moot questions, or to maintain a legal bureau for those who may chance to be interested, for the time being, in the pursuit of some academic matter.” Therefore, the order overruling the defendant Union’s demurrer and the temporary restraining order issued against it, its officers and agents, are vacated.

The defendants A. L. Gunter and Edward Hargett were properly served with process. They have made no motion to dismiss the action against them. They assign as error the overruling of their demurrer— which is a j oint demurrer with the defendant Union — to the complaint, and they further assign as error the order temporarily restraining them and the defendant Union.

These are the only references to the defendants Gunter and Hargett in the complaint: They are officers and agents of the defendant Union and residents of the State. The temporary restraining order does not mention their names. There is nothing in the record to show what offices they hold in the Union, and nothing to show what acts, if any, they have done in respect to the matters and things alleged in the complaint. As they have been made parties apparently only because they are alleged to be officers and agents of the defendant Union, we deem it proper to vacate also the order overruling their demurrer and the temporary injunction against them as agents of the defendant Union.

If upon a further hearing it should be determined, after the court hears the evidence and finds the facts, that the defendant Union has been properly served with process, and is subject to suit as a legal entity under the provisions of G.S. 1-97(6), then the demurrer to the complaint and the order to show cause against it, its officers and agents will not present moot questions, and can properly be adjudicated by the court below.

Error and Remanded.