Brotherhood of Railroad Trainmen v. Cook , 1920 Tex. App. LEXIS 540 ( 1920 )

On Motion to Dismiss.

BOYCE, J.

The appellee, A. E. Cook, recovered judgment in the district court of Dallas county against the appellant, Brotherhood of Railroad Trainmen, and said defendant has prosecuted this appeal. The appellee now moves that the appeal be dismissed because the appeal bond was not filed within the time required by law.

The facts necessary to a decision of this motion are: The appellant, Brotherhood of Railroad Trainmen, is an unincorporated voluntary association of trainmen having an extensive membership throughout the United States, and affords its members insurance against accidents, etc. The organization consists of a grand lodge and such subordinate lodges as are chartered by the grand lodge. It is provided by the constitution that the headquarters of the grand lodge shall be located at Cleveland, Ohio. The officers of the grand lodge have their offices at such place, and the general business of the association is transacted through such officers. There was a subordinate lodge of the Brotherhood located at Dallas, which had president, secretary, treasurer, etc. The term of court at which the judgment was rendered could, according to law, and as a matter of fact did at this partieuar term, continue in sesssion for more than 8 weeks. The appeal bond was filed by appellant more than 20 and less than 30 days after the overruling of the motion for new trial and notice of appeal.

Article 2084 of the Revised Statutes- requires as to the filing of an appeal bond in such case that—

“If the term of the court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days if he resides out of the county.” ,

What, then, is the status of the defendant association, and where is its residence, if it can be said to have a residence? In the absence of legislation, a voluntary association of this character is not regarded by the law as a person or entity. " Burton v. Grand Rapids Furniture Co., 10 Tex. Civ. App. 270, 31 S. W. 91; Slaughter v. American Baptist Publishing Society, 150 S. W. 226; Home Benefit Association v. Wester, 146 S. W. 1022; C. J. vol. 5, p. 1334. Where such associations engage in business enterprises, the liability of the members thereof to third persons is similar to the liability of partners, and such liability could be enforced in the same manner as a partnership liability. But such associations were not strictly partnerships in fact; the law only applying some of the features of the partnership law to them. In some respects they were like corporations. Industrial Lumber Co. v. Texas Pine Land Association, 31 Tex. Civ. App. 375, 72 S. W. 878; Liederkranz Singing Society v. Germania Turn-Verein, 163 Pa. 265, 29 Atl. 918, 43 Am. St. Rep. 798; Ostrom v. Greene, 161 N. Y. 353, 55 N. E. 922. In the Pennsylvania case referred to the court said that a voluntary association of this character occupies an intermediate position between a partnership and a corporation. The Court of Appeals of New York, in the case of Ostrom v. Greene, supra, after making the statement that a voluntary association is neither a partnership nor a corporation, says:

In that ease it was intimated that the right to sue and' be sued in the name of its president, conferred by the statute of New York on voluntary associations,’ “may be of a corporate nature.”

In 1907 the Legislature enacted a law <R. S. arts. 6149-6154) which provides that — •

An unincorporated association “may sue or be sued in any court of this state having jurisdiction of the subject-matter in its company or distinguishing name; and it shall-not be necessary to make the individual stockholders or members thereof parties to the suit.”

The law contains other provisions which it is not necessary for us to refer to in this discussion. We think the effect of this law was, at least for the purposes of the litigation, to constitute the association an entity. Judge Brown, in the case of Frank v. Tatum, 87 Tex. 204, 25 S. W. 409, after referring to the statutes of several states which authorize suits to be brought by or against copartnerships in their firm names, says:

“The effect of such statutes is to give to the partnership recognition as ‘an entity or distinct legal person, distinct from its members.’ ”

If the association, for the purposes of 'the suit, is to be regarded as an entity, so that it could be sued by name, then it was contemplated that it should have a residence somewhere. The law in reference to the appeal bond, which we have quoted, makes provision only for a defendant who either resides in the county of the suit or out of it'; there being no provision for appeal by a defendant without a residence. Under the circumstances we think that the residence of the association is to be determined like that of a corporation. In this event its residence would be at the place of the general headquarters of the governing officers and body— in this instance Cleveland, Ohio.

These conclusions result in our holding that the appeal bond was filed within time, and that the motion to dismiss the appeal should be overruled.