Fletcher v. Tribe

Opinion by

William W. Porter,

This suit is brought at common law by a member of an unincorporated beneficial society against the society eo nomine, for sick benefits alleged to be due and unpaid.

It is objected, both by demurrer and affidavit of defense, that the suit is improperly brought. The court below overruled the demurrer and entered judgment for want of a sufficient affidavit.

If the defendant were an unincorporated association other than amo-called beneficial society, this proceeding would be bad for want of parties defendant. The suit should have been against all or some (representing themselves and others interested) of the members associated under the joint title. Such bodies, while not partnerships, are in the nature thereof, and should sue, or be sued, in the form usual in such cases. Thus, in McConnell v. The Bank, 146 Pa. 79, it is said: “The suit stands against the Apollo Savings Bank without anything upon the record to show the character of the institution or the names of the persons comprising it, if it be a partnership or a private banking association. If the latter, there is no defendant on the record. A suit against a firm must set out the names of the individuals composing the firm. A judgment against the Apollo Savings Bank would do the plaintiff no good if he had one.”

Again, in the Singing Society v. Turn-Verein, 163 Pa. 265, where the right of possession to certain chattels was in dispute, suit was permitted to be brought bjr “ The Liederkranz Singing Society, of Lancaster, Pa., by F. C. Ostermayer et al.,” Mr. Justice Mitchell there says: “ It is necessary that the suit should be brought on behalf of all the parties interested, but this may as well be done in substance by using the general name which describes them all, as by the phrase, ‘in behalf of themselves and all others interested.’ The latter is the usual form, and it is always better to adhere to established practice; but there being no plea in abatement here, the common interest of the parties being substantially expressed on the record, and there being individual plaintiffs responsible for costs, the case was not in a position to be nonsuited for want of parties.”

But an unincorporated beneficial association is in a somewhat different position from other unincorporated societies, by reason of the act of April 28, 1876, which provides, “That members of lodges of the order of Odd Fellows, Knights of .Pythias and other organizations paying periodical or funeral benefits, shall not be individually liable for the payment of periodical or funeral benefits or other liabilities of the lodge or other organization, but the same shall be payable only out of the treasury of such lodges or organizations. Provided, that the provisions of this act shall only apply to unincorporated associations.”

This act places the organizations described in a middle'-ground between quasi-partnerships and corporations. While it takes from the members a personal liability, it makes no provision for a direct means of reaching the treasury. Corporations have franchises and presumably assets, upon which judgments may be executed. But what process known to the common law can reach “the treasury” of a quasi corporation? The position of such an organization as the defendant, is anomalous. If sued at common law (even if individual members are joined as defendants), no process can issue either against the defendant or its members for the recovery of a debt judicially found to be due and payable. Again, upon whom shall original proeess be served? Not upon the association, but only upon some of its members, through and by whom it alone has a legal entity. Yet it is contended that such members cannot properly be made parties to the suit.

By the act of June 16, 1836, the several courts of common pleas are given the supervision and control of unincorporated societies or associations and partnerships. This jurisdiction clearly comprehends matters relating to such organizations as the present one. Equity will reach not only a settlement of controversies, but has power and process to enforce its decrees. But the original process must be served upon members and officers of the association, who must be made parties defendant to the end, not that personal liability may be imposed or enforced, but that some person known to the law, may be within the grasp of the court through whom its decrees may be carried into effect. Thus, though the treasury alone shall respond for a debt found to be due, those in control of the treasury may be compelled to see that the treasury meets its liabilities In-payment. Again, the organization has still some of the features of a partnership. Claims for benefits arise under the articles of association. The right sought to be enforced is created by the contract relation, and the dispute is between quasi-partners. Such disputes are properly cognizable only by a court of equity.

It cannot be urged (as it has been in some of the lower courts), that the common-law action is the more speedy and economical course of procedure. The converse of such a statement is the more accurate, under recent changes in the conduct of the-equity business of the courts.

The plaintiff’s remedy, if he has a right of action, is by bill in equity, and the demurrer should have been sustained. As this disposes of the plaintiff’s present action, it is neither necessary nor proper to discuss the other matters of defense set up in the affidavit. . The judgment on the demurrer is reversed, and judgment thereon is now entered for the defendant, the costs of this appeal to be paid by the appellee.

W. D. P outer, J., concurs hr the judgment.