{ "id": 8654009, "name": "PHILOUS E. TUCKER v. HENRY EATOUGH, Individually and as Agent for the UNITED STATES TEXTILE WORKERS OF AMERICA, an Unincorporated Association", "name_abbreviation": "Tucker v. Eatough", "decision_date": "1923-11-21", "docket_number": "", "first_page": "505", "last_page": "509", "citations": [ { "type": "official", "cite": "186 N.C. 505" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "259 U. S., 344", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 423328 ], "opinion_index": 0, "case_paths": [ "/us/259/0344-01" ] }, { "cite": "156 N. C., 328", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "159 N. C., 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658151 ], "opinion_index": 0, "case_paths": [ "/nc/159/0285-01" ] }, { "cite": "162 N. C., 475", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "147 N. C., 104", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "154 N. C., 268", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "174 N. C., 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253329 ], "opinion_index": 0, "case_paths": [ "/nc/174/0235-01" ] }, { "cite": "118 N. C., 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653252 ], "opinion_index": 0, "case_paths": [ "/nc/118/0358-01" ] }, { "cite": "123 N. C., 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657486 ], "opinion_index": 0, "case_paths": [ "/nc/123/0099-01" ] } ], "analysis": { "cardinality": 548, "char_count": 12081, "ocr_confidence": 0.469, "pagerank": { "raw": 3.694056381300688e-07, "percentile": 0.8926095691293199 }, "sha256": "305f19b6adcbf0ac622d6c8a949f2e8162646a86f176598c78e44c8f09996833", "simhash": "1:46b686a7000a01f0", "word_count": 2105 }, "last_updated": "2023-07-14T15:10:30.005509+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PHILOUS E. TUCKER v. HENRY EATOUGH, Individually and as Agent for the UNITED STATES TEXTILE WORKERS OF AMERICA, an Unincorporated Association." ], "opinions": [ { "text": "Clark, O. J.\nIn the summons, the sheriff was commanded \u201cto summon Henry Eatough and Henry Eatough as agent and organizer of and representing the members of the United Textile Workers of America, an unincorporated association, defendants in the above action.\u201d If the \u201cUnited Textile Workers of America\u201d had been a corporation the service would have been invalid, C. S., 483 (1), and the action should have been dismissed as to them by.the judge ex mero motu. As the summons recites that they are unincorporated, for a still stronger reason the summons should have been dismissed. In either event the action of the judge would have been-correct.\nThe United Textile Workers of America did not appear and could not for they had no legal or actual existence, and there was and could be no service on any one as to them. The demurrer by whomsoever filed was not and could not be an acknowledgment of service by any one, and the court could act ex mero motu upon the allegation of the plaintiff in the summons and in the complaint that the party attempted to be sued was unincorporated, and the return of the sheriff that there had been no service upon any one except Henry Eatough.\nThe complaint avers that Henry Eatough issued a printed circular that was libelous and reflected on the plaintiff, and that as he was the agent of the said unincorporated association, said association is responsible without naming any of them or service on any of them, and asks for $10,000 damages out of said Henry Eatough and said unincorporated association, and naming no one, and service being had on no one except said Henry Eatough.\nIt has been held by our Court that unincorporated associations cannot be sued in the manner attempted in this case, and it has been held by various other courts also that voluntary unincorporated associations have no separate legal existence; that they cannot make contracts or be sued as an association except through the individuals who compose its membership.\nIt has been held in some of the equity courts of this country that where some of the members of an unorganized body have been made parties that proceedings will lie against them, but this rule is .only applicable in those courts after sundry members have been made x>arties, and in this case none of the members of the alleged United Textile Workers of America have been made j>arties, and even the equitable doctrine of virtual representation adopted by the chancery courts in some other jurisdictions cannot apply.\nIn this State, our statute does not even go to that extent, C. S., 457, which merely j)rovides for the joinder of x>arties as follows: \u201cWhen the question is one of a common or general interest of many persons, or where the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all,\u201d but that is merely x>ermissive to them and clearly does not aqoply to tbe circumstances of tbis case. Here Eatougb is sued as an individual and as agent of tbe United Textile Workers. No member of tbe union is in.court or even named as a defendant. Eatougb alone is sued, first as an individual and second as alleged \u201cagent or organizer of tbe union,\u201d but it is not even alleged tbat be is a member, and, on tbe contrary, tbe complaint avers tbat tbe union is composed of a large number of individuals wbo are not incorporated. It does not appear tbat any one is authorized to represent them.\nIn Abbott v. Hancock, 123 N. C., 99; Sullivan v. Field, 118 N. C., 358, and Winders v. Southerland, 174 N. C., 235, cited by tbe plaintiff, it was beld tbat a demurrer does not lie for superfluous parties, but tbis does not dispense witb tbe requirement tbat before a party named as defendant can be proceeded against, it must be served witb summons and possess legal capacity to be sued.\nIn Kerr v. Hickes, 154 N. C., 268, it is said: \u201cA voluntary association bas no existence or power except as contained in its formal articles of agreement or established by custom acquiesced in by tbe parties to it.\u201d Tbe complaint in tbis case shows plainly tbat tbe action was brought against tbe association, and in tbis State only natural or artificial persons can be brought into court upon summons. Tbe defendant, United Textile Workers of America, not being incorporated, is without capacity to sue or be sued, and tbe court properly dismissed tbe action ex mero motu.\nIn Nelson v. Relief Department, 147 N. C., 104, tbe matter is discussed fully, and tbe Court said tbat it appeared tbat tbe alleged defendant was neither incorporated nor a legal entity, adding tbat even a State department like tbe Insane Asylum, or tbe Board of Education, or the State\u2019s Prison, though created by statute, bad no power to sue and are immune from liability to suit except when tbe statute creating them especially granted tbe permission to sue or be sued, and said tbat tbe alleged \u201cBelief department is not a natural person. It is not a corporate body. It bas no legal entity. It is, in tbe eye of tbe law, an 'airy nothing.\u2019 It bas no power to contract. Any contract made in its name would be tbe contract of tbe individual assuming to act for it or tbe contract of tbe railroad company whose 'agency\u2019 it was. A judgment against tbe 'relief department\u2019 would have nothing to act on. Tbe sheriff could find no one upon whom to levy bis execution. It would glide from bis grasp as tbe shade of Oreusa eluding tbe embrace of Eneas.\n\u201cTenuesque recessit in auras.\nTer frustra comprensa effugit imago.\nPar levibus ventis volucrique simillima somno.\u201d\nVirg. Eneid II, v. 791 et seq.\nIt was also said in that case that there being a defect of jurisdiction, the court should have dismissed the action ex mero motu. \u201cThe position of the plaintiff was no better tjian if the summons had been served on an infant in an action on contract.\u201d\nThe subject has also been discussed in Ball-Thrash v. McCormick, 162 N. C., 475; Brewer v. Abernathy, 159 N. C., 285; Kochs v. Jackson, 156 N. C., 328. In all of these cases it was held that a proper method of taking advantage of the defect in parties on the ground of incapacity to be sue,d is by a written demurrer when the defect appears on the face of the record, as is the case here, or by answer when the incapacity to be sued does not appear.\nIt is true that if a defendant named in a summons or an action, who has the capacity to sue or be sued, appears therein for any purpose, except where his appearance is properly restricted to the purpose for which a special appearance can be entered, his appearance cures any irregularity in the method and detail of service, and by his appearance, if he has the legal capacity to be sued, he waives the question of venue. But that is not the case here, for the reason that the demurrer is based upon the want of legal capacity to sue or be sued.\nThe only party in this case was Henry Eatough, and the language of the summons could not bring the United Textile Workers of America in as defendant even if that association was a legal entity.\nAmong other cases, in the Coronado Coal case, 259 U. S., 344, Chief Justice Taft uses the following language: \u201cUndoubtedly at common law an unincorporated association of persons was not recognized as having any other character than a partnership in whatever was done, and it could only sue or be sued in the names of its members, and their liability had to be enforced against each member.\u201d In the famous Taff-Vale case, in which an unincorporated labor union was held to be suable, this was placed solely upon the ground that Parliament had passed the Trade Union Act of 1871, which permitted trade unions to be registered, and gave to registered unions the power to own property and to act by agents. This is cited and explained by Judge Taft in the Coronado Coal decision, supra.\nIn North Carolina there is no legislation thus changing the common law, and the Legislature has not authorized, but has refused to authorize these unincorporated associations to take and hold property in their association name. In the Coronado case it is said by Chief Justice Taft: \u201cThere is no principle better settled than that an unincorporated association cannot, in the absence of a statute authorizing it, be sued in the association or company name, but all the members must be made parties, since such bodies, in the absence of statute, have no legal entity distinct from that of its members. 5 C. J., 1369; 20 R. C. L., 672, and many other cases.\nIf an action could be brought against Eatougb, it certainly could not be served upon Eatougb alleging tbat be is agent for tbe United Textile Workers of America, but it must be served upon some officer of tbe corporation designated by statute for tbat purpose. Tbis alone would sustain tbe action of Judge Harding.\nBut upon tbe broader ground, if contrary to common law, an action could be brought without authority of a statute against an unincorporated body, it would be permissible for any person to bring an action against tbe Confederate Veterans Association, or tbe American Legion, or tbe League of Women Voters, or any other unorganized body upon an allegation tbat one of their members bad committed tbe libel or other legal wrong against tbe person bringing tbe action. It certainly cannot be necessary to discuss further tbe proposition tbat the United Textile Workers of America not b'eing a legal entity, and there being no statute authorizing them to be sued, tbat tbe action was properly dismissed as to them.\nTbe defendant, Eatougb, is liable for any libel tbat be may be proven to have issued, and any individuals or corporations who aided and abetted him in issuing a libel can be made parties defendant, but not an unincorporated body of men.\nAffirmed.", "type": "majority", "author": "Clark, O. J." } ], "attorneys": [ "William L. Marshall for plaintiff.", "J. Franlc Flowers for defendant." ], "corrections": "", "head_matter": "PHILOUS E. TUCKER v. HENRY EATOUGH, Individually and as Agent for the UNITED STATES TEXTILE WORKERS OF AMERICA, an Unincorporated Association.\n(Filed 21 November, 1923.)\n1. Actions \u2014 Defenses\u2014Unincorporated Societies \u2014 Process\u2014Principal and Agent \u2014 Slander\u2014Corporations\u2014Statutes\u2014Pleadings\u2014Demurrer.\nAn unincorporated association or society bas no legal entity at common law, and there is none conferred by statute, for liability for libel of an alleged agent, and when it appears that the summons in the action had only been served on one as agent for such society, the court will dismiss the action when the complaint itself shows want of jurisdiction, ex mero motu. Nor can a written demurrer to this want of jurisdiction confer it on the courts: Held further, the service would not have been sufficient upon a corporation under the facts of this case. C. S., sec. 483 (1).\n2. Same \u2014 Class Representation.\nOur statute permitting the joinder of parties and recognizing representation by common interests, C. S., sec. 457, cannot have application to an attempted suit against an unincorporated society, when no individual has been made a party defendant, or appears to defend the action in behalf of himself or other member of the society.\nAppeal by plaintiff from Harding, J., overruling a demurrer, 16 August, 1923, from Mecklenburg.\nThis action was begun 11 May, 1923, by the issuance of summons against \u201cHenry Eatough, individually, and as agent and organizer of and representing the members of the United Textile Workers of America, an unincorporated association,\u201d but when the complaint was filed it disclosed that the purpose of the action was to sue .the United Textile Workers of America and said Henry Eatough for $10,000 damages for an alleged libel issued by him.\nIt appears from the complaint of the plaintiff, as well as in the summons, that the United Textile Workers of America is an unincorporated association and service was made on Eatough alone.\nThe case coming on to be heard before Harding, J., upon the complaint and demurrer, the court \u201cbeing of the opinion upon the pleadings filed that the defendant, United Textile Workers of America, is not properly before the court, the demurrer is sustained,\u201d and the plaintiff excepts.\nWilliam L. Marshall for plaintiff.\nJ. Franlc Flowers for defendant." }, "file_name": "0505-01", "first_page_order": 569, "last_page_order": 573 }