Wolfe v. Limestone Council No. 373 , 1912 Pa. LEXIS 831 ( 1912 )

Per Curiam,

An examination of this record satisfies us that the court below was right in holding that no joint trespass was shown to have been committed by the several defendants. The unincorporated association named as a defendant is not a person natural or artificial and could not properly be sued as such: Ash v. Guie, 97 Pa. 493. “The proper method of suing such an association is to institute a suit in equity against some of the members as representing themselves and all others having the same interest, and after judgment, to compel the defendants ’to see that the treasury of the association pays the claim: ” Maisch v. Order of Americus, 223 Pa. 199; Fletcher v. Gawanese Tribe, No. 281, 9 Pa. Superior Ct. 393.

The Act of April 28, 1876, P. L. 53, “Relieving members of beneficial societies from individual liability for lodge indebtedness,” when it provides that “members shall not be individually liable for the payment of periodical or funeral benefits or other liabilities of the association, and the same shall be payable out of the treasury,” by the words “other liabilities,” means all liabilities properly chargeable to the treasury of the society, and contemplates obligations in addition to funeral expenses or death benefits: Pain et al. v. Sample, 158 Pa. 428. If the defendant association were liable for appropriating the property of the plaintiffs to its own use, its treasury and not the funds of the individual members would have to respond in damages. But it is clear on the facts in this case that there was no such liability. When the forfeiture of the charter was declared the state council of the Junior Order of United American Mechanics did not take over the property of the defendant council, .and the reissue of the charter to the plaintiffs, after a lapse of more than six years, would not serve to vest in them, or in the lodge organized by them, the property in question; nor would it give them any peculiar right of possession therein. The plaintiffs had no right of possession other than the joint right which they enjoyed in common with the other members of the defendant council, and their secession •therefrom would not divest its property: State Council Junior Order of United American Mechanics v. Emery, 219 Pa. 461.

The other ground for entering the nonsuit, namely, because the action was not brought in the name of the trustees of the plaintiffs’ association, likewise seems to be well taken. The laws of the order to which that society belongs ordain that the trustees of a local lodge shall “take charge of and hold all the property of the Council not otherwise provided for.” This evidently contemplates more than a mere passive trust. “In cases of unincorporated associations .... suits may be brought by some of the members in their own names on behalf of and as representing all:” Liederkranz Singing Society v. Germania Turn-Verein, 163 Pa. 265; but, where the suit is to protect property rights, and the legal estate in the property taken or injured is vested in trustees whose duty it is not only to hold the title but to take charge of the property, the action should be brought in the name of such trustees.

The assignments are overruled and the judgment is affirmed.